Gravelle v. Minneapolis & St. L. Ry. Co.

• Decision Date: 01 May 1882
• Citation: 11 F. 569
• Parties: GRAVELLE v. MINNEAPOLIS & ST. L. RY. CO.
• Court: U.S. District Court — District of Minnesota

11 F. 569

GRAVELLE v. MINNEAPOLIS & ST. L. RY. CO.

United States Circuit Court, D. Minnesota.

May, 1882

James D. Springer, for motion.

A. B Jackson and C. K. Davis, contra.

McCRARY C. J.

The defendant complains that there was error in the charge of the court upon two points, to wit: (1) As to the effect of the absence of the link from the tender; and (2) as to the effect of the omission of the assistant yard-master to signal the engineer to slow up when approaching the car to which the coupling was to be made.

Upon the first point the jury were charged to determine from the evidence whether the absence of the link from the tender was such a defect in the machinery as the plaintiff had no reason to apprehend; and whether its absence was an unusual thing and whether, in consequence of it, the plaintiff was subjected to extraordinary dangers and peril. They were also charged as follows:

'If you find that it was not unusual to have links left off the tender, then the plaintiff of course was bound to be advised of that fact, and cannot recover upon that ground but if you find that it was the duty of the railroad company always to have the link on the tender, and that the failure to do that was to leave the machinery in an unusually dangerous condition, the fact would give the plaintiff the right to recover.'

It is suggested by counsel that the court erred in omitting from the charge a statement that the dangerous condition of the machinery caused by the absence of the link must have contributed to produce the injury before the defendant would be liable. In this the counsel overlooks what was said by the court in charging the jury immediately in connection with the clause above quoted. The jury were told, in substance, that a railroad company is bound to furnish to its employes reasonably safe and convenient machinery with which to perform their duties; and the court added:

'If they fail in this, and the employe is injured on that account, and without fault of his own, they are liable.'

Taking the whole charge together I think the question was fairly submitted to the jury, whether the absence of the link rendered the machinery unsafe and dangerous, and whether the plaintiff was injured in consequence thereof.

It is further insisted that there was evidence tending to show that it was the duty of the crew, of which plaintiff was one, to keep the tender and car supplied with links, and that if this was so then the absence of the link was negligence of a fellow-servant.

As I remember the testimony on the part of defendant it tended to show that the defendant's custom was not to keep links attached to its tenders, but to leave them scattered about the yard, to be picked up and used by employes when required in coupling the tender to a car.

There was no evidence tending to show that the company made it the duty of any servant to attach the link to the tender before it was moved up for the purpose of making a coupling. It was insisted by the plaintiff, and there was testimony tending to support the contention, that it was negligence on the part of the company to manage its coupling operations in this way; and that question of fact was, I think, properly submitted to the jury.

The negligence, if there was any, in failing to affix the link to the tender was the negligence of the company, and not of a fellow-servant of plaintiff. It was the result of a custom in the yard which must be presumed to have been sanctioned by the company. It is suggested further that plaintiff did not allege in his petition, as an independent ground for recovery, that the machinery was defective on account of the absence of a link, or that the defendant was negligent in respect thereto, or had notice thereof.

The petition avers in general terms that the 'plaintiff, without fault or negligence on his part, was hurt and injured, in the manner hereinafter set forth, through the negligence, recklessness, and unlawful acts and omissions of the defendant.'

Whether under such an allegation, any act of negligence, or any fact constituting negligence, not specifically set out in the petition, can be proved on trial, may be a question of some doubt; but it is not necessary to determine it upon this motion. Nor is it necessary to determine whether, upon a critical examination of the other allegations of the petition, it would appear with sufficient certainty that the plaintiff alleged the fact of the absence of the link from the tender as constituting negligence on the part of the defendant. It is sufficient, for the purposes of this motion, to say that these alleged variances between the allegations and the proof do not constitute a...