Crew v. St. Louis, K. & N.W. Ry. Co.

• Decision Date: 26 April 1884
• Court: U.S. District Court — Eastern District of Missouri
• Parties: CREW v. ST. LOUIS, K. & N.W. RY. CO. [1]

20 F. 87

CREW v. ST. LOUIS, K. & N.W. RY. CO. ^[1]

United States Circuit Court, E.D. Missouri.

April 26, 1884

McCRARY J., (charging jury orally.)

You are, I suppose, aware that the controlling question in this case is the question of negligence. The plaintiff's allegation is, that he was injured by the negligence of the defendant, the St. Louis, Keokuk & Northwestern Railway Company. That he was injured while in the service of that company is not disputed; and the case must turn, under the facts given to you in evidence and the law as the court will state it, upon your decision of the question whether the railway company was guilty of negligence causing or contributing to the plaintiff's injury; and if that is found in the affirmative, then the other question, whether the plaintiff himself was guilty of contributory negligence that is, negligence on his part which contributed to his injury. These questions you are to determine upon the proof that is before you, in the light of the law, as I shall state it.

The particular negligence which the plaintiff alleges or charges against the railway company is-- First, in employing one Shields to act in the capacity of a conductor upon one of its freight trains, the said Shields being an unfit and improper person to perform the duties of that office, by reason, as is alleged, of being addicted to habits of intemperance. That is the allegation of the plaintiff. It is for you to say from the proof whether that allegation is sustained. In considering it you will bear in mind the well-known rule of evidence, that positive testimony is always more to be relied upon than negative testimony. If certain witnesses testify to having seen particular things, and others testify that they did not see them, the testimony of those who affirm is more to be relied upon than the testimony of those who deny. And so in regard to a fact of this character. The positive testimony of witnesses that a man was intoxicated at a particular time is better than the testimony of those who say that he was not intoxicated.

The law upon this subject is that it is the duty of a railroad company in employing its servants to use ordinary care and diligence to select only those who are fit and proper persons to be engaged in that duty. I use the term 'ordinary care and diligence,' but in this connection these words have a different meaning from what they would have in some other connections. The care and diligence which is required is measured by the nature of the duties to be performed by the servant who is employed. If he is employed to perform very difficult and dangerous duties, and if by the neglect of these duties human life may be imperiled, then, of course the care which the railroad company must exercise in this selection is much greater than it would be if he were employed to perform other and less important duties. It has been said by the supreme court of the United States that it is not improper, in connection with this subject, to say that a railroad company must exercise proper care and caution because the care and caution to be exercised in this selection of agents to discharge duties so important as these is great, and more than would be required with respect to other matters; and I may say that the very same rule applies also to the other branch of the subject. The diligence which was required of the plaintiff himself in the performance of his duties as an employe was such as the circumstances and surroundings required him to exercise. If he was performing a very dangerous duty, he was called upon to exercise corresponding care and diligence, and so with regard to the employment of this man Shields as a conductor. If you find from the evidence that he was a person of intemperate habits, the court charges you as a matter of law that he was an unfit person to be employed in such service, and if the railroad company knew the fact, or if by proper diligence it could have ascertained the fact, it was negligence on its part to employ him. Furthermore, if, after his employment the railroad company was advised, through its managing agents, of course, of the fact that he was an intemperate and improper person and failed to discharge him, or if by the exercise of proper caution and care it could have ascertained the fact of his being an improper person and did not do so, then his employment or detention, as the case may be, was negligence on the part of the railway company. It does not, however, necessarily follow from the fact that the defendant employed an incompetent and unfit person as conductor that the plaintiff's injury resulted therefrom. It is the duty of the plaintiff to show, by a preponderance of testimony, that the accident which resulted in his injury was caused in whole or in part by the negligence of this incompetent and unfit conductor, if you find that he was such.

It is also charged as a matter of negligence against the railway company that this conductor was guilty of certain acts of negligence, and it is necessary that I should say to you here that if you find that the conductor was an unfit and improper person to be employed in this capacity, and the company had notice, within the rule that I have laid down to you, then his negligence becomes the negligence of the company, and for which the company is responsible. In view of that rule, the plaintiff has charged that this conductor, being thus unfit and incompetent, was guilty of certain acts of negligence which contributed to the injury complained of. Those acts of negligence are as follows: It is stated in the petition that the conductor negligently delayed his train at the station mentioned; that while the train was delayed at the station he negligently failed to give any warning to an approaching train; that he failed to carry three red lights on the rear of his car for the purpose of giving notice to an approaching train; and that the defendant was guilty of negligence, independently of any act of this conductor, by failing to adopt such rules as were necessary and proper for the protection of the safety of their employes in this particular case,-- a rule by which this approaching train would be warned of the fact that the train with which it collided was at the station. It is for you to consider, upon all the proofs in the case, whether any of these allegations of negligence against the railway company have been sustained.

A good deal of discussion has been had before you about the rules of the railway company, and I have been requested by counsel to give my views with respect to the construction, force, and effect of a number of them. I do not propose, however, to go over all of them, but shall only refer specifically to one. I say generally that the railway company has a right, and it is its duty, to make rules for the protection of the safety of its employes, and such rules its employes are bound to regard and obey. But under the form of making rules, of course, a railroad company cannot exempt itself from negligence. Its rules must be such as tend to the protection of the lives of its employes. With this general statement in regard to the rules, you may take and consider them. They are before you in evidence. I will say to you, however, that the terms which are employed in these rules may be explained and understood, in the light of the testimony, as to what is understood by the words employed in railroad parlance among railroad men. Rule 4, under the head of 'signals,' is important to be considered in this connection, and I will read it:

'Two red signal-lights must be carried on the rear of each passenger-train, three red lights on the rear of each freight or other train, and one on the rear of the tender of the engine, if the engine is alone, when running at night.'

By the terms of this rule three red lights are required to be kept on the rear of a freight train, and one of the allegations of the plaintiff's petition is that by reason of a failure to comply with this rule the collision occurred. You will determine from the evidence how many red lights were upon that car and where they were placed, and when you have so determined you will decide, upon the evidence, whether this rule was complied with, and if it was not complied with, then whether the absence of one or two of the red lights, as the case may be, was the cause of the collision. If you believe from the evidence that the fact that there was but one light there in sight from the rear as this train approaches, and that that light was dim, so that the engineer in charge of the...