Finley v. Richmond & D. R. Co.

• Decision Date: 18 December 1893
• Citation: 59 F. 419
• Parties: FINLEY v. RICHMOND & D. R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

59 F. 419

FINLEY v. RICHMOND & D. R. CO.

United States Circuit Court, W.D. North Carolina.

December 18, 1893

J. M Morphew and H. C. Jones, for plaintiff.

George F. Bason and R. B. Glenn, for defendant.

DICK District Judge, (charging jury.)

The plaintiff entered into the service of the defendant upon an express written contract not to go between the cars for the purpose of coupling and uncoupling, and that service was to be performed by means of a stick provided by the company. Now, if he violated such contract of his own volition, or by the direction of a fellow servant, he was guilty of contributory negligence, and cannot recover; but if he went between the cars under the order of the conductor, or of a person managing the operation of the train in the absence of the conductor, and by the direction or knowledge of the conductor, then the written contract was waived, and if plaintiff attempted to perform the assigned service with reasonable care, and was then injured, he is entitled to recover compensatory damages for the injury sustained.

A railroad company, in operating a train on its railway, must have some person authorized to control the movement and operation of the train, and such person represents the company, and may waive general rules and special contracts by other instructions required by the circumstances of the occasion. The evidence tends to show that the regular conductor was not on service, but he had been directed by the company to put Mr. Burgin in charge of the train on that day that Mr. Burgin was a state officer having charge of a number of convicts who were in the service of the company as laborers; that said convicts were employed at the coal chute about one-fourth of a mile from the place of the injury, and were under the immediate supervision of Mr. Burgin; that the engineer had operated the train in transporting cars to the coal chute in the absence of, and with the knowledge and assent of, Mr. Burgin, and caused the movement of the engine that produced the injury.

I charge you that, if you believe that the engineer had charge of the movement and management of the cars with the assent or knowledge of the temporary conductor,--the regular conductor being absent,--then the engineer had the authority of a conductor in giving directions to subordinate employes, and could waive the general rules and contracts of the company and if you are satisfied from the evidence that the engineer directed plaintiff to go between the cars to place a bent link in position for coupling, which could not be done with a coupling stick, and he exercised ordinary care in doing as he was directed, then he is entitled to recover compensatory damages for the injuries sustained. There is not the slightest evidence to show that the engineer was willfully negligent in the act that caused the injury. There is evidence tending to show that the engineer intended to act with caution, and failed to prevent injury by reason of defective machinery, the defect being unknown to the plaintiff. If the machinery was defective, and had been so for some time, and such defect was the proximate cause of the injury, then the doctrines relating to fellow servants do not apply, as the fellow servant had not the power of preventing the injury, although he did the best he could under the circumstances of the transaction.

The evidence tends to show that the engineer knew that the plaintiff was between the cars, and that the engineer did not do the injury willfully or carelessly, but that it was caused by the engine not operating as he anticipated. The evidence tended to show that there was a brake on the tender which was in good working order, and if the engineer had used this brake he could have controlled the movement of the train, and no injury would have occurred; that the brake on the engine and the reverse lever, were not in good order; that a brake on an engine is not necessary, and many engines are used without brakes. I charge...