Kresanowski v. Northern Pac. R. Co.

• Decision Date: 04 October 1883
• Citation: 18 F. 229
• Parties: KRESANOWSKI v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — District of Minnesota

18 F. 229

KRESANOWSKI v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Minnesota.

October 4, 1883

Action brought to recover damages under the following state of facts:

The plaintiff, who was employed in excavating by the defendant was sent with others to his work on an engine. The tender being full of wood, he, with one or two others, sat on the front beam of the engine with his feet over the pilot. While proceeding to the work in that position, the engine on which he was riding ran into another engine, and the plaintiff was badly crushed in the collision, and one leg had to be amputated. The foreman of the gang was not present, and the engine was furnished by the company for the convenience of this gang of men, the distance to the work being from a mile and a half to three miles. At the conclusion of the plaintiff's case, defendant's counsel moved the court to instruct the jury to return a verdict in favor of the defendant, upon the ground that the plaintiff had failed to establish a cause of action against the defendant; and upon the ground that the evidence showed contributory negligence on the part of the plaintiff which would bar a recovery.

C. K Davis, for plaintiff.

W. P Clough, for defendant.

SHIRAS J.

I have considered, gentlemen, this motion that has been made asking the court to instruct the jury to find a verdict for the defendant, which has been presented and urged, mainly, on two grounds: First, that the evidence of the plaintiff shows that the accident, and the injury following it, were caused by the negligence of a co-employe; that the general rule is, where a person enters into the employment of a railroad company, that being a hazardous and perilous business, he undertakes all the ordinary risks that pertain to that business, and that among the risks which he thus takes upon himself are the dangers or risks from the negligence of a co-employe; and it is urged that the uncontradicted evidence shows that the accident in this case was due to the neglect of a co-employe,-- that is, of a person who was engaged in the same common employment with the plaintiff; and that, as it was due to the negligence of a person standing in that position, under the general rule of law the plaintiff cannot recover. It is also urged that the evidence shows that the plaintiff, by his own action, placed himself in a dangerous position that contributed directly to the producing of this action; that is to say, that he got upon the pilot of this engine and rode there; that that was contributory negligence upon his part, and of such a character as to defeat his right of recovery in the case, under the evidence as it is now presented before the court.

I will present my views first upon the latter proposition in this case. It is the one that, to my mind, is the question that must be decisive of this motion. The supreme court of the United States has had this question before it in several different cases, and has laid down general rules that of course will control all inferior courts of the United States in determining when it is a proper case for the action of the court in giving a peremptory instruction to the jury to find for the defendant by reason of the fact that the plaintiff has failed to make out his case.

I think it is apparent to every one-- it cannot be questioned-- that a person placing himself upon the pilot of an engine certainly puts himself in a very dangerous position; there can be no more dangerous one to be thought of upon a train or upon a locomotive. It is apparent to every one that it is a place that is exposed to the very greatest danger. In case of any accident there is scarcely any protection at all to prevent the party from being thrown off from the locomotive; it is not a place that is gotten up or intended to be used for the purpose of persons riding upon, and in case of collision, where the collision comes from the front part of the engine, it is the place of all others that is exposed to the greatest danger. Now, I think it will strike the mind of any one that if a railway company should direct or require its employes to ride upon this pilot, it is requiring them to ride in an exceedingly dangerous place; but if the employe himself places himself in that position the same rule applies to him: he has himself placed himself where there is very great danger, and the query arises whether or not that is contributory negligence.

In the case of Hough v. Ry. Co. 100 U.S. 213, that was cited in the argument yesterday in the discussion of this question, the supreme court say:

'If the engineer, after discovering or recognizing the defective condition of the cow-catcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, he would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as such defect was found to have been the efficient cause of the death. He would be held, in that case, to have himself risked the dangers which might result from the use of the engine in such defective condition.'

Now, then, the evidence in this case shows that this locomotive was used for the purpose of transporting these employes and laboring men to and from the place at which they were engaged in their work. The employes knew that; they used it day after day, without complaint, so far as the evidence shows. There was no promise upon the part of the railroad company to supply them any different mode of transportation. They went upon this engine, and the evidence discloses the fact that they got upon the engine at different places; that is to say, they placed themselves upon different positions on this engine; and, among others, they placed themselves on the pilot, in front of the engine. The evidence does not show that that was done by the direction of any one in the employment of the company; that is to say, neither the engineer nor fireman, nor the boss in charge of the gang, ever directed that this should be done. It seems, as far as the evidence discloses the fact, to have been done by the men themselves; they chose to place themselves in that position. It is said, however, that one reason for it-- and probably the reason that is assigned-- is that the engine was so full of men that some of them, if they rode at all, were compelled to place themselves in that position, in front of the engine. Granting that position, we have this case: That here is the company furnishing this engine for the men to ride upon; the men go upon it, and continue doing so day after day, when it is apparent to them that if they all ride upon that engine some of them must ride upon that pilot, and they choose to do so, and they place themselves in that position. Now, then, they know the risks. It seems to me, within the rule of this case of Hough against the Railroad Company, they concluded to use the engine for the purpose of being transported upon it, after they had knowledge of the fact that if they did so that they would be placing themselves in a dangerous position. They must have known that fact.

In the case of Railroad Co. v. Jones, 95 U.S. 439, (a case somewhat similar in its features to the case now before the court,) the supreme court laid down some rules which seem to me to be applicable to this case. In this case-- the case of Railroad Co. v. Jones-- the facts were that the person who was hurt was riding, with one other, upon the pilot of the engine. The accident was caused by collision with some cars that were standing upon the track; and this locomotive, came in...