Judkins v. Maine Cent. R. Co.

• Citation: 80 Me. 417,14 A. 735
• Parties: JUDKINS v. MAINE CENT. R. CO.
• Decision Date: 18 June 1888
• Court: Supreme Judicial Court of Maine (US)

14 A. 735

80 Me. 417

JUDKINS

v. MAINE CENT. R. CO.¹

Supreme Judicial Court of Maine.

June 18, 1888.

On motion from superior court, Kennebec county.

Action on the case to recover damages for injuries sustained by the plaintiff, Judkins, while in the employ and through the alleged negligence of the defendant, the Maine Central Railroad Company. The jury returned a verdict in favor of the plaintiff, and the defendant filed a motion for a new trial on the ground that the verdict was against the law and the evidence.

Herbert M. Heath, for plaintiff. Webb & Webb, for defendant.

PETERS, C. J. The plaintiff sues to recover damages for a personal injury which he alleges was caused by the defendant's negligence. The following facts, after verdict for the plaintiff, may be considered as established: On the evening of November 3, 1885, a freight train ran into the station at Waterville, containing a flat or platform car belonging to a foreign company, (Boston & Maine,) loaded with coal which it received at Gardiner to transport to Skowhegan. The next morning the flat car, with a box car attached to it, was left standing on a side track at the station. The plaintiff, who was an intelligent and experienced hand in the business of braking and switching cars in the Waterville yard, undertook, with another brakeman, in pursuing their regular work, to disconnect the box car from the flat car, and to run it upon another track. The associate stood at the front of the box car, ready to shackle it to the engine, while the plaintiff was at the other end of the same car in order to unshackle it from the flat car, and to give to the other persons engaged in the job the customary signals. The work having been accomplished, the plaintiff started for the engine and box car as they were moving off, and, while in the act of climbing upon the box car in motion, noticed that the flat car had begun to move slowly down the siding in the opposite direction, from the effect of too strong a movement of the engine when backing down to make the disconnection. He alighted upon the platform, and proceeded at once to the flat car, getting upon it at the rear as it was moving, and, passing to the front, found his efforts to stop the car by means of the brake to be unavailing, for the reason that the brake staff or handle was so bent that it could not be used. He then got down upon the track in front of the car, moving towards him, and grasped a hold upon the front board of the bin which held the coal, the board being near the front of the car, planting his feet upon the brake-beam under the car, endeavoring with his other hand to seize the brake-chain connecting with the beam, and thus, by pulling with his hand, and pressing with his feet, to work the brake sufficiently to stop the car. While attempting this operation, his foot slipped, and was run over by the car and badly injured. Other evidence will be stated in connection with the points to be examined.

The plaintiff's contention that it was improper or imprudent to use such a pattern of brake on cars as the augur-handle brake, as it is called, has no support to stand upon. The evidence conclusively shows that the objection is not tenable.

The plaintiff contends that it was negligence for the company to allow a car in such disabled condition to be in use upon its road; and in support of the position invokes the principle that the employer is under responsibility to the employe to furnish properly constructed tracks and rolling stock, and keep the same in repair. The defendants rely upon the other principle that servants take the risk of the negligent acts of fellow-servants in the same employment, and contend that they employed suitable persons as inspectors, whose duties required them to decide whether cars are fit to run on the road or not, and that brakemen and inspectors are such fellow-servants, and that no further responsibility than that, as far as brakemen's rights are concerned in a matter of this kind, rests upon the proprietors of the road. We do not think it to be at all necessary to declare which should be the governing principle as applicable to this case. The rights of the parties depend upon other and less general rules. If we assume, for the sake of progress in the examination of the case, that the car inspectors, who passed the car as one that could properly be run, were not fellow-servants with the brakeman in the yard, we do not even then see that the defendants were responsible for plaintiff's injury. In the first place, we cannot perceive that it was an act of negligence on the part of any one that the car happened to be situated, in the condition it was in, on a side track at Waterville, taking into consideration any acts of service which the yard brakeman would be likely to be called upon to perform in connection with it. It appears that it is not essential that flat cars should have brakes upon them for any purposes excepting when they are being managed singly. The movements of a freight train are governed by the brakes on the box cars, and on the saloon car at the end of the train. Flat cars are not in all instances provided with brakes. When loaded with lumber and some other kinds of merchandise, it frequently happens, and necessarily so, that the brakes on such cars cannot be advantageously used or used at all. They are often covered up by the load. And it is a very common thing that brake-staffs are bent or broken, and become temporarily useless by the cars battering against one another. There were received in the usual course of business, in the Waterville yard, at the time of and long before this accident, a hundred or more box and platform cars daily, of all kinds and patterns, domestic and foreign, loaded and light, and in all conditions of repair. It was a common thing to find that the breaking apparatus on a car had become broken or bent, deficient for use. No one was directed to move the car in question from its position on the side track. When the time should come for making up a train, it might be connected by moving other cars to it, instead of moving it to them. It was inherently safe enough to keep on its intended journey with a completed train. It became necessary to detach another car from it. Who could anticipate a probability that, in uncoupling the car attached to it, any one might be injured? It was practically like a perfectly constructed car without a brake attached. But suppose the car were to be moved from its position. It must be either to continue on to its destination, or to be moved to some suitable place for removing the coal from it, or sent directly into the repair-shop. Who is to assist in moving or managing it if it cannot remain where it is? Is it negligence in the company to ask the assistance of their brakeman in changing its position? The very employment of the plaintiff consisted partly in such services. He says his business was in performing "odds and ends" of work about cars. It happens that the defendants have repair-shops at Waterville, but maintain them at only one or two other places on the road. There are many places where cars are shifted and transferred before a car which had become disabled on the road would ordinarily get into a station where repairs could be made upon it. They cannot be left at the wayside. To meet the necessities of all such cases, a reasonable management of the road may require that certain rules and regulations be adopted and observed in order to apprise employes of deficiencies in the running-gear of cars, whereby they might be warned from exposing themselves to unusual danger. Here no notice was posted on the car. But was any notice required? Bid any injury occur to plaintiff from want of notice? He was not injured by using, or attempting to use, a deficient brake. He knew that the brake would not work. Any servant may be seasonably subjected to risks which properly belong to the employment he is in. One of these risks which the plaintiff assumed, was in handling, under reasonable conditions, crippled freight cars. Under this rule, it was held in Belair v. Railway Co., 43 Iowa, 662, that where it was the duty of a brakeman to take damaged...