Johnson v. Southern Pac. Co.

• Decision Date: 28 August 1902
• Docket Number: 1,722.
• Citation: 117 F. 462
• Parties: JOHNSON v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 462

JOHNSON v. SOUTHERN PAC. CO.

No. 1,722.

United States Court of Appeals, Eighth Circuit.

August 28, 1902

Syllabus by the Court.

The act of March 2, 1893 (27 Stat.c. 196, p. 531), does not make it unlawful for common carriers to use locomotives engaged in interstate commerce which are not equipped with automatic couplers.

A statute changing the common law modifies or abrogates it no farther than the clear import of its language necessarily requires.

A penal statute may not be so broadened by construction as to make it cover, and authorize the punishment of, otherwise lawful acts, which are not denounced by the usual meaning of its express terms.

A statute which enumerates the parties, things, or acts which it denounces thereby impliedly excludes all others from its effect.

When the language of a statute is unambiguous, and its meaning is plain, it must be held to mean, and the legislative body must be held to have intended, what it plainly expresses, and no room is left for construction.

A servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his experience, age, and capacity by the use of ordinary care.

A brakeman of ordinary intelligence and experience assumes the risks and dangers of coupling cars provided with different kinds of well-known couplers, bumpers, and deadwoods, because these are the ordinary risks and dangers of his service.

The equipment, under the act of March 2, 1893, of a car with automatic couplers which will couple automatically with those of the same kind or make, is a compliance with the statute. It does not require cars used in interstate commerce to be equipped with couplers which will couple automatically with cars equipped with automatic couplers of other makes.

Cars loaded with articles shipped to other states, and started whether in yards, on side tracks, or in trains, are used in moving interstate traffic. But vacant cars in yards, on side tracks, in repair shops, or in trains which are not loaded with, or in use to move articles of, interestate commerce, do not fall within the terms or meaning of the act of March 2 1893. A dining car standing empty on a side track at an intermediate station, where it had been left by a train engaged in the same traffic, going in the opposite direction and which the owner intended to use in interstate traffic was drawn by a freight engine from the side track to the turntable, turned, and placed again upon the side track. Held, that the car was not used in moving interstate traffic while it was on the side track and while it was being turned.

Thayer J. dissenting in part.

W. L. Maginnis, for plaintiff in error.

Henry G. Herbel (Martin L. Clardy, on the brief), for defendant in error.

This is an action for damages for a personal injury, in which the court instructed the jury to return a verdict for the defendant upon this state of facts: The defendant was operating passenger trains between San Francisco, in the state of California, and Ogden, in the state of Utah. It was in the habit of drawing a dining car in these trains. Such a car formed a part of a train leaving San Francisco, and ran through Ogden, where it was ordinarily turned and put into a train going west to San Francisco. On August 5, 1900, the east-bound train was so late that it was not practicable to get the dining car into Ogden in time to place it in the next west-bound train, and it was therefore left on a side track at Promontory, in the state of Utah, to be picked up by the west-bound train when it arrived. While it was standing on this track the conductor of a freight train which arrived there was directed to take this dining car to a turntable, turn it, and place it back upon the side track, so that it would be ready to return to San Francisco. The conductor instructed his crew to carry out this direction. The plaintiff, Johnson, was the head brakeman, and he undertook to couple the engine to the dining car for the purpose of carrying out the order of the conductor. The freight engine was equipped with a Janney coupler, which would couple automatically with another Janney coupler, and the dining car was provided with a Miller hook or Miller coupler, which would not couple automatically with the Janney coupler, because it was on the same side, and would pass over it. Johnson knew this, and undertook to make the coupling by means of a link and pin. He knew that it was a difficult coupling to make, and that it was necessary to go between the engine and the car to accomplish it, and that it was dangerous to do so. Nevertheless he went in between the engine and the car, and tried to make the coupling three times, without objection or protest. He failed twice, and the third time his hand was caught and crushed so that it became necessary to amputate his arm above the wrist.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge, after stating the case as above.

Under the common law the plaintiff assumed the risks and dangers of the coupling which he endeavored to make, and for that reason he is estopped from recovering the damages which resulted from his undertaking. He was an intelligent and experienced brakeman, familiar with the couplers he sought to join, and with their condition, and well aware of the difficulty and danger of his undertaking, so that he falls far within the familiar rules that the servant assumes the ordinary risk and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his age, experience, and

capacity by the use of ordinary care, and that the risks and dangers of coupling cars provided with different kinds of well-known couplers, bumpers, brakeheads, and deadwoods are the ordinary risks and dangers of a brakeman's service. Manufacturing Co. v. Erickson, 55 F. 943, 946, 5 C.C.A. 341; Railroad Co. v. Blake, 27 U.S.APP. 190, 194, 11 C.C.A. 93, 95; 63 F. 45, 47; King v. Morgan, 48 C.C.A. 507, 511, 109 F. 446, 450; Gold Mines v. Hopkins, 111 F. 208, 304, 49 C.C.A. 347, 353; Railroad Co. v. McDade, 135 U.S. 554, 10 Sup.Ct. 1044, 34 L.Ed. 235; Railroad Co. v. Seley, 152 U.S. 238, 241, 13 Sup.Ct. 298, 37 L.Ed. 150; Railroad Co. v. Voight, 175 U.S. 498, 120 Sup.Ct. 385, 44 L.Ed. 560; Sweeney v. Envelope Co., 101 N.Y. 520, 5 N.E. 358, 54 Am.St.Rep. 722; Railway Co. v. Smithson, 45 Mich. 212, 7 N.W. 791; Hodges v. Kimball, 44 C.C.A. 193, 104 F. 745; Whitcomb v. Oil Co. (Ind. Sup.) 55 N.E. 440, 442; Boland v. Railroad Co. (Ala.) 18 So. 99.

This proposition is not seriously challenged, but counsel base their claim for a reversal of the judgment below upon the position that the plaintiff was relieved of this assumption of risk, and of its consequences, by the provisions of the act of congress of March 2, 1893 (27 Stat.c. 196, p. 531). The title of that act, and the parts of it that are material to the consideration of this contention, are these:

'An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving wheel brakes and for other purposes.

'Section 1. That from and after the first day of January, 1898, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train brake system. * * *

'Sec. 2. That on and after the first day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.'

'Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act shall be liable to a penalty of one hundred dollars for each and every such violation. * * * '

Sec. 8. That any employe of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.'

The first thought that suggests itself to the mind upon a perusal of this law, and a comparison of it with the facts of this case, is that this statute has no application here, because both the dining car and the engine were equipped as this act directs. The car was equipped with Miller couplers which would couple automatically with couplers of the same construction upon cars in the train in which it was used to carry on interstate commerce, and the engine was equipped with a power driving wheel brake such as this statute prescribes. To overcome this difficulty, counsel for the plaintiff persuasively argues that this is a remedial statute; that laws for the prevention of fraud, the suppression of a public wrong, and the bestowal of a public good are remedial in their nature, and should be liberally construed, to prevent the mischief and to advance the remedy, notwithstanding the fact that they may impose a penalty for their violation; and that this statute should be so construed as to forbid the use of a locomotive as well as a car which is not equipped with an...