Dawson v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 31 March 1902
• Docket Number: 1,600.
• Citation: 114 F. 870
• Parties: DAWSON v. CHICAGO, R.I. & P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 870

DAWSON v. CHICAGO, R.I. & P. RY. CO.

No. 1,600.

United States Court of Appeals, Eighth Circuit.

March 31, 1902

Thomas P. Fenlon (B. F. Endres, on the brief), for plaintiff in error.

W. F Evans (M. A. Low, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was an action for personal injuries, in which the trial court, after hearing all the testimony, directed a verdict in favor of the defendant company. Whether such direction was proper is the sole question presented by the record, and the facts on which the decision must turn are few and simple. Alberta M. Dawson, the husband of Daisy Dawson, the plaintiff in error, was a brakeman in the employ of the Chicago, Rock Island & Pacific Railway Company, the defendant in error. On November 5, 1898, the freight train on which he was employed as head brakeman arrived at Narka, Kan., between 2 and 3 o'clock p.m.; having started from Phillipsburg, Kan that morning, and being on its way to Fairbury, Neb. Arriving at Narka, his conductor ordered him to pick up a car which was standing on the house track, and place it in the train. With this purpose in view, the engine, with two cars attached,-- the one next to the engine being a box car, and the other a flat car belonging to the Lake Shore & Michigan Southern Railway Company, and loaded with piling,-- were accordingly detached from the train, and run forward eastwardly some distance from the station, beyond a switch with a view of backing in on the house track, and picking up the car, which was standing from 130 to 150 feet west of the switch. Dawson and another person, by the name of Short, who was not in the employ of the defendant company, appear to have ridden on the flat car from the station to the switch where Dawson jumped off for the purpose of throwing the switch. While so riding they stood on the swinging brake beam of the flat car, maintaining their footing thereon by means of two hand holds (one on each side of the drawhead) at the end of the car. When the engine backed down in obedience to the signal to pass in on the house track, Dawson, who was then standing near the switch, stepped in, or swung himself in, as one witness says, between the box car and the flat car, seizing one of the hand holds at the end of the flat car, and stepped, or attempted to step, on the swinging brake beam, either with the intention of standing thereon and riding back to where the car was to be picked up, or with a view of climbing up on the flat car. The hand hold gave way because one of the screws by which it was held in place was screwed into wood that had become rotten; the result being that he fall across the track and was run over, sustaining injuries on account of which he died the succeeding day. The flat car to which the defective hand hold was attached, as before stated, was a foreign car, and had come into the possession of the defendant company at Phillipsburg, Kan., on the night preceding the accident. It had been placed in the train on which Dawson was a brakeman early in the morning of the day the accident occurred, and had been hauled in that train from Phillipsburg to Narka. The hand hold which proved to be defective was placed there in obedience to the act of congress of March 2, 1893 (27 Stat. 531, c. 196). The purpose of requiring grip irons or hand holds to be placed at the end of cars used in interstate commerce seems to have been to afford greater security for employes when they are in the act of coupling or uncoupling cars. One of the plaintiff's witnesses, who was nearest to the train when the accident occurred, testified that the engine and cars were backing in on the switch 'tolerably fast,' or 'pretty swift,' when Dawson swung in between the cars and stepped on the brake-beam, while another witness, who was farther away, said that they were moving slowly.

It is claimed on behalf of the plaintiff that the facts above recited, concerning which there was no dispute, would have warranted the jury in finding that the defendant company, in the exercise of ordinary care, ought to have discovered the defect in the hand hold or grip iron on the end of the foreign car prior to the accident, and that it was guilty of negligence in not making such discovery. It is also claimed that the facts would have warranted a jury in finding that Dawson acted with ordinary prudence on the occasion in question, and was not guilty of contributory negligence.

Relative to the first of these contentions, we observe that as the flat car to which the hand hold was bolted had been received by the defendant company on the evening previous to the accident, and had passed only one inspection point prior thereto; and as there does not seem to have been any outward evidence that the timber was rotten where one end of the hand hold was bolted, until the screw came out and disclosed that the wood was decayed, or 'doty,' as one witness says, it is at least questionable whether a jury could reasonably have found that the defendant company was guilty of culpable negligence in not discovering the defect. Short, who rode with Dawson from the station to the switch, and who had held on to the identical grip iron which subsequently gave way when Dawson seized it, says that it appeared to be in a proper condition until the screw came out and disclosed the defect in the timber, and so it may have appeared to the defendant's car inspectors. But it is unnecessary, we think, to express a definite opinion upon the question whether a jury of reasonable men might have found that the defendant was guilty of a want of ordinary care.

Dawson went in between two cars, when, as the witness who was best able to judge says, 'they were moving pretty swift,' or 'tolerably fast,' seized the grip iron on the end of the flat car, which was primarily designed to be used by a brakeman for the purpose of making a coupling, and stepped, or attempted to step, on a swinging brake beam, with a view of standing and riding thereon for a distance of about 150 feet, until the car which he had been directed to pick up was reached. It appears that there were stirrups and hand holds on the side of the box car, which he might have used without any risk of injury, if he desired to ride rather than to walk, and that he could have walked to the place where the coupling was to be made without delaying the train for a minute. From any point of view, the risk which Dawson thus took was an unnecessary risk, that might as well have been avoided, and he ought to have avoided it. He was not confronted at the time with an emergency which called for instant and decisive action, such as sometimes confronts railroad men, and compels them to incur considerable risk. He was in a situation where he could have done what he desired to do in a perfectly safe way. He thought proper, however, to place himself in a position of great peril, where a slight misadventure meant instant death or serious injury. Conceding it to be true that brakemen sometimes take such risks without any sufficient cause or excuse, yet such acts should nevertheless be pronounced negligent. Such conduct on the part of brakemen and others ought, also, to be discouraged. If a man exposes himself to great risk unnecessarily, he is guilty of negligence, although it be shown that other persons have done the same thing and escaped unhurt. The inherent quality of an act is not changed, whether it is done by one or many. In the case of Morris v. Railway Co., 47 C.C.A. 661, 664, 108 F. 747, 749, this court held, in substance, that where there is a comparatively safe way, known to a person, of doing an act, and there are no obstacles in the way of his employing the safe method, but he deliberately chooses a dangerous method, the perils of which are obvious, he is guilty of negligence, and thereby assumes the risks so incurred. See, Also, Loranger v. Railway Co., 104 Mich. 80, 86, 62 N.W. 137; Carrier v. Railway Co., 61 Kan. 447, 451, 59 P. 1075; Cunningham v. Railway Co. (C.C.) 17 F. 882.

Our conclusion is, therefore, that, in view of the undisputed evidence in the case which this record contains, Dawson must be adjudged to have been guilty of negligence which immediately contributed to his death, and on this ground the lower court properly directed a judgment for the defendant. The judgment below is accordingly affirmed.

CALDWELL, Circuit Judge (dissenting). The act of congress provides that 'it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grip irons or hand holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.' It will be observed that the requirement of the act is that the grip iron or hand hold shall be 'secure,' and they are to be placed in the ends and sides of each car, for greater security to men in coupling and uncoupling cars. The act does not undertake to direct when the brakeman shall use the grip irons on the side, and when he shall use those on the end, of the car. They are placed near together. Sometimes it is more convenient to use one, and sometimes the other. They are used indifferently, except that when signals are to be given by the brakeman the end hand holds are preferred. On the subject of the use of these hand holds, experienced brakemen and other railroad men testified as follows:

'Q. Is it ever customary, or not, for a brakeman occupying the position that Dawson did, and about to perform the services which he was, to get upon a car while in motion, for the purpose of coupling it onto another car some distance from it? A. It is customary. Q. What is the usual and ordinary way of getting upon a car such as this one was, where

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