Mares v. N. Pac. R. Co.

• Decision Date: 11 October 1884
• Citation: 21 N.W. 5,3 Dak. 336
• Parties: Mares v. Northern Pac. R. Co.
• Court: South Dakota Supreme Court

21 N.W. 5

3 Dak. 336

Mares

v.Northern Pac. R. Co.¹

Supreme Court of the Territory of Dakota.

Filed October 11, 1884.

W. P. Clough, for appellant. Wilson & Ball and Thomas Wilson, for respondent.

HUDSON, J.

The plaintiff in this case was employed by the defendant as a brakeman in its yard at Fargo. While so employed it was his duty to switch and distribute cars and make up trains each day and night. To do such work a switch-engine was employed, propelled by steam, and to run and operate this engine, one Bassett was employed by the defendant, and did serve on said engine. It is alleged in the complaint of the plaintiff, in substance, (and seems to have been maintained by proof,) that said engineer was a man of hasty and excitable disposition and ungovernable temper, and had been, while in the employ of the defendant as engineer, accustomed to become unduly and dangerously excited and angry, and while in the performance of his duty was accustomed to act in a most reckless manner, causing great danger and peril to his fellow-servants, especially to the brakemen on the train attached to or moved by the switch-engine, all which the defendant had long known; that in the month of October, 1881, while the plaintiff was in the discharge of his duty as brakeman in the night-time, and while upon the top of a freight car, part of a train being moved in the yard by the switchengine on which Bassett was engineer, the plaintiff, from his position on the rear car, gave the engineer a signal to move back the cars so attached to the engine the length of a certain number of cars indicated by the signal; that while the cars were moving backwards, and before they had been moved backwards the distance they were intended to be moved, and as indicated by the signal given by the plaintiff, the said engineer, suddenly and without warning, stopped and reversed his said switch-engine and the cars attached thereto, and thereby threw the plaintiff off the rear car where he was standing onto the ground. Thereupon, the said engine, suddenly, before the plaintiff had time to move out of the reach of the cars or off the track, pushed the said cars backwards upon said track and over the plaintiff, and thereby injured the plaintiff, crushed and broke both of his legs, so that it became necessary to amputate them. The defendant in its answer, among other things, avers “that the said fall of the plaintiff, and his said injuries resulting therefrom, were solely caused either by the negligence of the plaintiff himself, or by that of some one or more of the other employes of the defendant engaged at work together with the plaintiff in the defendant's said yard at the time of the happening of the said injuries, and not by any negligence or fault on the part of this defendant.”

It appears by the evidence that the plaintiff had previously had experience as a brakeman at other places, but had worked in this yard with this engineer but about a week, and his acquaintance with him had been formed in that time; that on the same night of the accident, before it occurred, the plaintiff and the said engineer had an altercation or dispute in relation to the work of the yard. It appears also in the evidence that the defendant had discharged the said engineer at some time prior to this, on account of some misconduct on his part, and had employed him again; that the superintendent of the company had full knowledge of the character and habits of the engineer. There was considerable proof on both sides relating to the circumstances of the accident, and the conduct of both the engineer and this plaintiff, which was somewhat conflicting. The negligence of the defendant company, complained of by the plaintiff, is in neglecting to use ordinary care in the selection of the engineer. The record in the case specifies many alleged errors as occurring at the trial in the court below, but the counsel, in his argument before this court, did not press upon our attention any except those relating to the contributory negligence upon the part of the plaintiff; therefore, only those will now be considered.

The alleged errors arise upon the charge of the court given to the jury, and refusal to charge as requested by defendant. The first is as follows: “It is also true that if the plaintiff had full knowledge of the reckless and careless habits of the engineer, Bassett, as complained of by him, or had reason to know of such recklessness and carelessness, he should either have quit the service, or reported the facts to the officers of the company having the power to discharge him, and a failure to do so might be negligence on his part. But, gentlemen, it is for you to say, from all the attending circumstances, whether he was negligent in that regard. While this rule of law above stated is generally true, a reasonable view must be taken in its application here. The evidence tends to show that the plaintiff had been at work in this yard but a short time, and only a part of that time with, or under, this engineer, Bassett. Now, had he such knowledge, or had he such an opportunity to know, of the careless and reckless habits of Bassett, rendering it dangerous for him to work with him, that made it his duty to have refused to continue in such service, or to have reported him to the officers of the company? The defendant having alleged negligence on the part of the plaintiff, denominated contributory negligence, it must be established by...