"Thomas
J. -- This suit is for damages on account of injuries
sustained by plaintiff while engaged in the service of the
defendant. The basis of this claim as set forth in the
petition is, in substance, this: That while, as one of
several section men, engaged in unloading a train of cars,
the division roadmaster, before the train was unloaded,
negligently gave an order to him to board the train, and
that, as he was attempting obedience to the order, the
roadmaster negligently permitted a railroad tie to be
unloaded and thrown from the car, which struck the plaintiff
with great force and seriously injured him. After a general
denial, it was answered that plaintiff was injured through
his own carelessness and that of his fellow employes.
"The
evidence shows that three sets of section men, making in all
sixteen or seventeen, and of whom plaintiff was one, were
brought together at Lamonte for the purpose of unloading five
or six cars of cinders and two of ties, to complete an
extension of a passing track, just outside and west of the
yards at that place. It was a work they were accustomed to
do. An engine was attached to the cars, and drew them
westwardly, distributing the cinders and ties along the route
of the proposed track, stopping at intervals for this
purpose. The cars loaded with cinders were next to the
engine, and those with ties at the rear of the train, Some of
the men were put to dumping the cinders, and others to
throwing out the ties. The ties, which were in coal cars, the
sides and ends of which were from three to three and one half
feet high, were thrown out on the north side, ends first.
After some of the cinders and ties had been unloaded, five or
six of the men, among whom was the plaintiff, were sent by
defendant's roadmaster, who had charge of the men and
work at that time and place, to shovel the cinders off the
rails and straighten out the unloaded ties left behind as the
train moved forward in the distribution of these materials
along the track. When plaintiff and his comrades had
completed this work, they stood east of the hind car of the
train, which was then stationary, plaintiff being on the
north side of the track, or between the rails of the track.
The roadmaster was on the hind car, and asked plaintiff and
the men with him if they were through, and, getting an
affirmative answer, he gave the order 'All aboard!'
in an imperative manner.
"At
the point where the car then stood there was a fill, and the
evidence tends to prove that on the south side there was
quite a decline, beginning at the end of the ties on which
the rails of the track rested, so that it was difficult in
some degree to pass along that side towards the front of the
train; and, on the other hand, there was evidence to the
effect that there was space enough between the end of the
ties and the beginning of the incline to enable one to
comfortably pass. On the north side the ground was level, but
the ties and cinders that had been unloaded made this route
also difficult for passage according to some of the
witnesses, but according to others they were so small in
number and amount that part of the way was not obstructed to
any great extent. When the order 'All aboard!' was
given, four or five men stood between plaintiff and the end
of the car. All made a rush to get aboard, the men nearest
the car climbing up at the rear end, but plaintiff ran along
the north side, intending to get on at the forward end, and
when he had advanced a few feet the roadmaster called to him
to look out. He dodged, but was too late, and a tie the men
threw out according to some witnesses struck him between the
shoulders, and according to others struck the ground,
rebounded, and struck him, knocking him down, and injuring
him seriously. The roadmaster was on the car at the time he
gave the order 'All aboard!' and knew that all the
ties had not been unloaded. Men standing on the ground could
not see the ties in the car, owing to the height of the side
and end boards.
"Plaintiff
and others testified that while they stood on the ground,
just before the accident, they did not see the men in the car
throwing out ties, and supposed when the order was given that
the ties were all unloaded. It was customary for the men to
get on at the end of cars of this kind, but sometimes they
would get on at the sides. In this instance, owing to the
height of the car, -- it being eight to ten feet from the
ground to the top of the sideboards, -- it was almost
impracticable to board it from either side, especially from
the south side, where there was quite a steep grade, and
there were no means of climbing up at the rear end, except by
the drawhead, and but one man at a time could ascend at that
point. At the forward end there were a breakbeam and another
car in reach, besides the drawhead, to enable a person to
board the car easily.
"There
is no pretense that the men engaged in unloading the cars
were guilty of negligence, as they could not see anyone on
the ground at the side of the car while stooping down to
handle the ties. At the time of the injury it was near noon,
and the men all knew that the train they were with must be
moved to get out of the way of a passenger train then nearly
due, and from that fact, and from the tone and manner of the
roadmaster in giving the order 'All aboard!' they
supposed expedition on their part was required, and plaintiff
started on a run.
"The
court instructed the jury that if they found from the
evidence that: Plaintiff was engaged as a laborer by
defendant upon its road; that one Pat Sheehan was at that
time employed by defendant to oversee the work being done by
plaintiff, and that by virtue of his employment and position
he had immediate control and direction of plaintiff and
others engaged in work with plaintiff, and had power and
authority to direct and control plaintiff in his work; that
in June, 1890, a load of ties was being unloaded from one of
defendant's cars upon defendant's road, where
plaintiff was at work, and that it was known to the said
Sheehan and the other workmen to be dangerous for any one to
attempt to board said car until all said ties had been
unloaded; that plaintiff was in a place of safety while said
ties were being unloaded, and that said Sheehan, acting by
virtue of his employment by defendant, negligently and
carelessly ordered plaintiff to board said car before all of
said ties had been unloaded and before the danger from the
ties being unloaded had passed, and that plaintiff had reason
to believe and did believe that said ties were all unloaded,
and that the danger of boarding said car had passed, and,
under the circumstances, plaintiff in the exercise of
ordinary care obeyed such order of Sheehan, and attempted to
board said car, and while attempting a tie was thrown from
said car and struck and injured plaintiff, and that such
injury was solely the result of said Sheehan's negligent
and careless order aforesaid, then you will find the issues
for the plaintiff.
"On
the part of defendant the court told the jury, in substance
that when plaintiff contracted to work for defendant as a
section hand he contracted to have ordinary skill and
information concerning the work he undertook to perform, and
that, if a person of ordinary...
