Louisville & N.R. Co. v. Ward

• Decision Date: 01 May 1894
• Docket Number: 114.
• Citation: 61 F. 927
• Parties: LOUISVILLE & N.R. CO. v. WARD.
• Court: U.S. Court of Appeals — Seventh Circuit

61 F. 927

LOUISVILLE & N.R. CO. v. WARD.

No. 114.

United States Court of Appeals, Seventh Circuit.

May 1, 1894

J. M Hamill, for plaintiff in error.

A. R Taylor, for defendant in error.

Before WOODS, Circuit Judge, and BAKER and SEAMAN, District Judges.

WOODS Circuit Judge.

The motion in arrest of judgment was properly overruled. Though inartistically drawn, the declaration, which is in trespass for a personal injury received by the plaintiff while employed as a switchman in the yard of the defendant at East St. Louis, by reason of a hole in the track, in which his foot was caught, shows a cause of action, and, if the allegations are in any particular imperfect, the verdict cured the defect. The one objection made to the complaint is directed to the averment 'that the defendant, by its servants having charge of keeping said track in repair knew or by the exercise of ordinary care would have known, of said defective condition of the track in time to have repaired same, and averted the injury to the plaintiff, yet they neglected to do so. ' But if it be true, as it is insisted, that the servants here referred to, for all that is averred, may have been fellow servants, for whose conduct or negligence the company was not responsible to the plaintiff it is not material, because, irrespective of that allegation, the complaint is good against a motion in arrest, if not good even upon demurrer. After a description of the track at and near the place of the injury, it is charged that the defendant was negligent in maintaining the track in the dangerous and defective condition which caused the injury. If the defendant did not know of the defective condition of its track, and under the circumstances its lack of knowledge was not culpable, it is not true that it had been negligent as charged; and it was therefore competent to prove what was necessary in that respect to establish the defendant's responsibility.

In instructing the jury the court said: 'The defendant has interposed a general denial of all acts of negligence, and in this suit the pleadings throw the burden upon the plaintiff,' etc.; and it is urged that this statement erroneously assumed that a denial of all acts of negligence was the only defense interposed, when in fact the defendant was insisting that the plaintiff was injured by his own negligence and by the negligence of fellow servants. This part of the charge was intended to locate the burden of proof, and not to constitute a formal statement of the issues, though it was accurate enough for that purpose, as the defendant had interposed only the plea of not guilty. Besides, other parts of the charge correctly and sufficiently presented the question of contributory negligence.

If the court erred in not instructing upon the doctrine that a servant has no remedy against the master for an injury caused by the negligence of fellow servants, it is not because of the mere omission to speak on the subject, but because of the refusal of the court to give special instructions which were asked. A proper instruction upon a particular point or phase of a case cannot be said to be erroneous merely because it does not cover some other point or phase, even though it be correlative in its character. For instance, the court, in this case, instructed 'that the duty was imposed by law upon the defendant to use reasonable care to prevent an accident to the plaintiff;' but that did not involve, as is contended, an assumption that the plaintiff was not bound to use care to avoid danger. There was, however, no omission to instruct clearly and fully upon the latter point. The jury was instructed, not only that the plaintiff 'must have exercised ordinary care and watchfulness in the manner of making the coupling,' which is criticised as limiting his diligence to the act of coupling alone, but was told, further and generally, that he must have been, when the injury occurred, 'in the exercise of due care for his own safety. ' If an instruction in any respect more explicit was desired, it should have been asked.

Of the special instructions asked and refused, the most important, not covered by the charge given, was the following:

'If the plaintiff and the section men working on defendant's road, who worked on the track in the East St. Louis yards, were in the employment of the same master, and engaged in the same common employment, in carrying on the same general business of the defendant, they were in law fellow servants of the same master; and, if the plaintiff was injured by the negligence of any of the section men who worked on defendant's road in the East St. Louis yards, then he cannot recover.'

Numerous decisions on the subject have been cited, but the rule declared by the supreme court in Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, is claimed to be broader, more comprehensive and far-reaching than any heretofore announced by that court. We therefore quote from the opinion in that case portions which we deem to be especially pertinent to the present case. On page 383, 149 U.S., and page 914, 13 Sup.Ct., after stating the doctrine of the Ross Case, 112 U.S. 377, 5 Sup.Ct. 184, that the conductor of a train has the control of a distinct department and represents the master, the court says:

'But this rule can only be fairly applied when the different branches or departments of service are, in and of themselves, separate and distinct. Thus, between the law department of a railway corporation and the operating department, there is a natural and distinct separation,-- one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So, oftentimes, there is in the affairs of such corporation what may be called the manufacturing or repair department, and another strictly

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