Neil v. Idaho & Washington Northern Railroad
| Decision Date | 04 June 1912 |
| Citation | 125 P. 331,22 Idaho 74 |
| Court | Idaho Supreme Court |
| Parties | JOSEPH NEIL, Respondent, v. IDAHO & WASHINGTON NORTHERN RAILROAD, a Corporation, Appellant |
RAILROADS-EMPLOYEES' LIABILITY LAW OF CONGRESS-INTERSTATE COMMERCE-PERSONAL INJURIES-EMPLOYEE-CONDUCTOR ON TRACK-ENGINE-SWITCHING-YARDS-PRESUMPTION-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-EVIDENCE-SUFFICIENCY OF INSTRUCTIONS.
(Syllabus by SULLIVAN, J.)
1. Sec 1 of an act of Congress relating to the liability of common carriers by railroad to their employees in certain cases (Chap. 149, 35 Stat. L. 65, Supp. 1909, Fed. Stats. Ann., p 584), provides that a railroad company shall be liable in damages to any person suffering injury, etc., resulting in whole or in part from the negligence of any of the officers agents or employees of such carrier or by reason of any defect or insufficiency due to its negligence, in its cars engines, appliances, machinery, track, roadbed, works, boats wharves or other equipment.
2. It is provided by sec. 4 of said act that the employee shall not be held to assume the risk of his employment in any case where the violation by such carrier of any statute enacted for the safety of the employees contributed to the death or injury of such employees; otherwise, under said act, the defense of assumption of risk remains as at the common law.
3. Said act restricts the defense of contributory negligence where there is negligence on the part of the company, and restricts the defense of assumption of risk where the company has violated any statutes enacted for the safety of the employee.
4. Said act limits a recovery to a case of an employee suffering an injury while he is employed by the carrier in interstate commerce.
5. Held, under the facts of this case that the respondent when he was injured was engaged in interstate commerce.
6. Where a railroad conductor, forty years of age, being in the possession of all of his faculties, who has had large experience in railroad business as a brakeman, switchman, switch-yard foreman, yard-master and conductor, whose train is made up, consisting of about twenty freight-cars and a caboose, and who goes to the engine attached to his train and delivers to his engineer his clearance card, and steps across the space between the tracks upon the "scale track" and walks leisurely back toward the caboose on his train, and the switch engine that made up his train and left it standing on the "passing track" proceeds down in the yards to get four cars loaded with coal and returns up the scale track with said cars, with the bell ringing so that it could be heard at least a thousand feet, and the engine laboring up a one per cent grade and running at from eight to twelve miles an hour, and the exhaust of steam and noise of the engine could be heard for a quarter of a mile, and the fireman on the switch engine had seen the respondent walking on the track when he was about 500 feet away, and respondent is not noticed thereafter by the fireman or engineer until he is struck by the engine, held, that the railroad is not guilty of negligence.
7. A person in charge of a switch engine in a railroad yard, used for the purpose of moving cars and making up trains, has a right to act on the belief or presumption that the various employees in the yard, familiar with the continuously recurring movements of the cars, will take reasonable precaution against the approach of the cars, particularly where the cars are moving so slowly that ordinary attention on the part of the employee would enable him to avoid injury.
8. When an engineer sees an adult, apparently in the full possession of his faculties, walking on the track ahead of his engine, he has a right to presume that such person will get off the track before the train reaches him.
9. Held, under the facts of this case that ordinary care on the part of the engineer and fireman did not require them to anticipate that respondent would not step off the track, and such care did not require them to stop the train and send someone forward to remove respondent from the track.
10. Under the facts of this case, and in the light of the presumption that one in the possession of his faculties, walking on a railroad track, will step off the track in time to avoid injury, the engineer and fireman on the switch engine had reasonable grounds to believe that the respondent would step off the track before the engine struck him.
11. Under the facts of this case, the engineer and fireman were not bound to anticipate and provide against extraordinary, unusual and improbable conditions which would involve inattention on the part of respondent, and their duty to him began only when they had good reason to suppose that he was unconsciously, or otherwise, in peril.
12. The engineer and fireman on a moving train, with bell ringing and the exhaust of steam and the train making considerable noise, may presume when they observe a railroad conductor walking on the track that he will heed the ringing of the bell and the noise of the train and step off the track in time to save himself from injury, unless something indicates the contrary.
13. Every railroad employee about a switching-yard must be taken to know and understand the hazards of the situation and that safety requires the utmost vigilance.
14. Held, that the question in this case is not what the engineer might have done, but what his duty to the respondent conductor required him to do in view of the latter's apparent duty and ability to protect himself.
15. When an engineer observes a man who possesses his faculties walking upon the railroad track and in no immediate danger, the obligation of care and effort on his part arises only at the moment when the person on the track is seen or believed to be in a perilous situation.
16. Under said act of Congress, contributory negligence on the part of the plaintiff is not a bar to recovery, but the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employee.
17. Held, that the doctrine of the "last clear chance" has no application to this case.
18. Held, that the verdict of $35,000 is excessive, even if negligence on the part of the railroad company had been shown.
19. Held, that it was error to give certain instructions; also that it was error to refuse to give certain proposed instructions.
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.
Action to recover from a railroad company for personal injuries. Judgment for plaintiff. Reversed.
Judgment reversed and a new trial granted, with costs of this appeal in favor of appellant.
Chas. L. Heitman, and John P. Gray, for Appellant.
The servants of the appellant in charge of switch engine 22, with that engine moving slowly as it was, were not bound to assume that an employee familiar as Neil was with the manner of doing business there, would be indifferent to the going and coming of cars. They had a right to act upon the belief that Neil in the yards would take reasonable precautions against the approach of switch engines, particularly with bell ringing, and had a right to assume that he would step off the track before the cars reached him. ( Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758.)
"When an engineer sees an adult on the track ahead of him, he ordinarily has a right to presume that he will get off the track before the train reaches him." (Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Smith v. Atlanta & C. R. R. Co., 130 N.C. 344, 42 S.E. 139; Pennsylvania Co. v. Myers, 136 Ind. 242, 36 N.E. 32; Louisville & N. R. Co. v. Cronbach, 12 Ind.App. 666, 41 N.E. 15; Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 P. 997; Cincinnati R. R. Co. v. Long, Admr., 112 Ind. 166, 13 N.E. 663; Carrier v. Missouri Pacific Ry. Co., 175 Mo. 470, 74 S.W. 1002.)
The railroad company owed to Neil or to any other of its employees who might be upon its tracks in its switching-yards the duty only to exercise ordinary care. .)
Neil assumed the risks, the danger from which brought about his injury. (O'Neil v. Pittsburg etc. Ry. Co., 130 F. 204; Goodes v. Boston & A. R. Co., 162 Mass. 287 38 N.E. 500; Appel v. Buffalo, N.Y. & P. R. Co., 111 N.Y. 550, 19 N.E. 93; Olsen v. Andrews, 168 Mass. 261, 47 N.E....
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