Jennett v. Louisville & N.R. Co.

• Decision Date: 30 June 1908
• Citation: 162 F. 392
• Parties: JENNETT v. LOUISVILLE & N.R. CO.
• Court: U.S. District Court — Northern District of Florida

162 F. 392

JENNETT v. LOUISVILLE & N.R. CO.

United States Circuit Court, N.D. Florida.

June 30, 1908

Geo. T Morgan and Maxwell & Reeves, for plaintiff.

Blount Blount & Carter, for defendant.

SHEPPARD District Judge (charging jury).

The case you are considering is one sounding in damages, which the plaintiff, as administratrix of the estate of Jennett, is seeking to recover of the defendant company, for the alleged wrongful death of the plaintiff's decedent, by the alleged negligence of the railroad company. The basis of the plaintiff's claim for recovery is the negligence of the defendant.

Negligence is defined by the authorities as a failure or the neglect by one to exercise that same care and caution that a reasonably prudent person would exercise at the same place and under the same circumstances.

The contention here is the negligence of the railroad company in failing to provide suitable and adequate appliances, to wit roadbed and culvert, at the place in question, and in failing to keep it in a safe condition, and in negligently ordering and requiring the said deceased engineer to run his engine over the alleged defective culvert, and further negligence in failing to ascertain the condition of the culvert in view of the weather conditions prevailing on the day of the accident. To these several causes of action the defendant has interposed the general issue, a plea of not guilty, which denies its negligence as the cause of the accident, and consequent death of the plaintiff's intestate. In addition to this general issue, the defendant interposes several pleas, stating the negligence of the plaintiff's deceased, and tending to charge the deceased with contributory negligence, which implies that the wreck and consequent death of the plaintiff's decedent was due to his own negligence in failing to take the necessary precaution which a reasonably prudent man would have exercised, in view of the weather conditions and apparent danger from sudden and excessive rainfall. The defendant railroad company must use reasonable care, consistent with the nature and extent of its business, in keeping its roadbed and track in safe condition, and is responsible to its employes for injuries resulting from carelessness in improperly and defectively constructing its culverts, and to keep them in a proper safe condition; and if, by care and prudence, the company may know of the defects in its ways and works, track, and culvert, it is its duty to keep advised of their condition and not needlessly expose its employes to peril and danger; and if the company could, by reasonable care and prudence, have ascertained the washout before the approaching of the train, and thereby have avoided the accident, and it did not do so, it is responsible to the decedent's administratrix for the injuries resulting from said accident.

But by employing the deceased as engineer the company did not become an insurer of his life or safety. Engineers take the ordinary risk of their employment, and the defendant could not be held liable for accidents which it could not by reasonable diligence have foreseen, or, by the exercise of reasonable care and prudence, have prevented. The engineer, Jennett, by his employment by the company, did not assume the risk of defective track conditions. He had the right to assume that the track was safe, and it was the duty of the company to keep this track in proper condition. The plaintiff's intestate could not be charged with knowledge of the defect in the culvert, but, on the contrary, he had a right to assume, without investigation, that the track was in a safe condition, and the defendant company could not relieve itself of responsibility for the defective condition of the culvert by a general notification in the office at Selma that there had been heavy rains, and that the engineer should not try to make schedule time, but to run cautiously.

Mere information in advance that conditions might be bad, without stating or pointing out where the defect was or might be expected, would not be sufficient notice to relieve the company of its lack of reasonable care and diligence in failing to ascertain and inform the engineer of the location of the particular danger apprehended; and, if the conditions along the track near the wreck were such as to inform the decedent that an unusual quantity of rain had suddenly fallen, and that flood conditions were apparent, and by the exercise of reasonable care and caution he could have ascertained the washouts, or from present conditions he might have apprehended the danger of running his train over the culvert, through which was flowing an unusual volume of water, which he could have seen by looking out, and negligently failed to see same, then he failed to exercise that care and prudence which an ordinarily prudent man would have exercised under like conditions, and contributed to his own injury and death, and the plaintiff would not be entitled to recover.

But it must appear that the deceased knew, or by...