Northern Pac Co v. Mares

• Decision Date: 19 December 1887
• Parties: NORTHERN PAC. R. CO. v. MARES. 1
• Court: U.S. Supreme Court

8 S.Ct. 321

123 U.S. 710

31 L.Ed. 296

NORTHERN PAC. R. CO. v. MARES.¹

December 19, 1887.

This is an action at law brought by the defendant in error, Richard Mares, against the Northern Pacific Railroad Company, in the district court of the Third judicial district of the territory of Dakota, to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant, by reason of its alleged negligence. The complaint alleges that on October 31, 1881, the plaintiff was in the employ of the defendant as a brakeman on duty as such in the yard at the city of Fargo, used for the purpose of switching cars to make up trains, in which service a switch-engine was used; that at the time of the injury the engineer of the switch-engine was one Bassett, who, it is alleged, was a man of hasty and excitable disposition, and ungoverned, violent, and hasty temper, 'and was and had for a long time been, while in the employ of this defendant as engineer, accustomed to become unduly and dangerously excited and angry, and while under the influence of anger or excitement, and while in the performance of his duty as engineer, was and had been accustomed to act the conduct himself as engineer in a most reckless manner, causing great danger and peril to his fellow-servants, and especially to the brakemen on the train or cars attached to or moved by the engine on which he was engineer;' and that in consequence thereof 'the said engineer was, at the time of the injury hereinafter referred to, and for a long time prior thereto had been, negligent, unskillful, unfit, and incompetent to act as engineer of said switch-engine, or of any engine or locomotive; of which facts the defendant had notice and knowledge, and by the use of ordinary diligence defendant would have discovered and learned that he was a negligent and an unfit, unskillful, and unsafe engineer. And this plaintiff had not notice or knowledge prior to the injury to him hereinafter referred to that the said engineer was for any reason or on any account and unfit or unsafe person to act as engineer.'

It is further alleged that at the time of the injury the plaintiff 'was required, in the performance of his duties as switch brakeman, to set or fasten, or to loosen, the brakes of the cars which were being switched or moved in the said yard, and he was at the time and place aforesaid required to perform the said duty on the cars of the defendant, which were being switched and moved by the engine in which the said Bassett was engineer, and in the moving of cars it was his duty as brakeman to give signals to the said engineer, and of the said engineer to obey such signals; that, at the time and place aforesaid, and while this plaintiff, in the performance of his duties as brakeman as aforesaid, was upon the top of the freight car (part of a train) being removed in the said yard by the engine in which the said Bassett was engineer, and while the said Bassett had control of and was managing said engine, this plaintiff, as it was his duty to do, gave the said engineer a signal to move and 'back' the cars attached to the said switch-engine the length of a certain number of cars indicated by the signal. And the plaintiff, as he was in duty required to be, was standing on the top of the rear car so being moved backward, and before said cars had been moved backward the distance which they were intended to be removed, and the distance which the signal, given by this plaintiff, required them to be removed, the said engineer unskillfully, negligently, recklessly, and suddenly, and contrary to his duty, stopped and reversed the said switch-engine, and the cars attached thereto, and thereby threw the plaintiff off the rear car where he was standing, and where it was his duty to stand, to the ground, and thereupon the said engineer suddenly, negligently, recklessly, and violently and unskillfully, then and there, and before the plaintiff had time to or could move out of the reach of the cars or off the track, moved and pushed the said engine and cars back ward upon said track and onto and over the plaintiff, and thereby greatly injured the plaintiff, and crushed and broke both of his legs, so that it then and there became and was necessary to amputate them, and they were then and there, on account of said injuries, amputated,' etc.

The answer of the defendant alleged '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 the defendant.'

The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff of $20,000, and costs. An appeal was taken from the district court to the supreme court of the territory, where it was heard upon a record containing a statement on motion for a new trial, which it was stipulated might be treated as a bill of exceptions. It embodies all the evidence upon the trial, with the rulings of the court during its progress, and the charge of the court to the jury, with all the exceptions thereto noted. The judgment of the district court was affirmed. From that judgment the present writ of error is prosecuted.

James McNaught, for plaintiff in error.

Thomas Wilson, for defendant in error.

Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.

It appears from the bill of exceptions that at the conclusion of the plaintiff's case counsel for the defendant moved for a nonsuit, which the court denied, and an exception was taken, which is still insisted on here. The defendant's counsel, however, offered evidence in support of the defense, and thereby waived this exception. Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. Rep. 685. When all the evidence had been submitted on both sides, the defendant by its counsel demurred to the evidence, and moved the court to dismiss the action, which the court refused to do; and thereupon the defendant requested the court to direct the jury to find a verdict for the defendant, which request was refused, and an exception taken. The question raised by these rulings, and the exceptions thereto, is whether there was sufficient evidence to justify the court in submitting the cause to the jury.

There was certainly eviden e tending to establish the following state of facts: That Bassett had been in the employ of the defendant as engineer in that yard before plaintiff was injured about a year; that during that time he had by his conduct frequently shown his negligence, recklessness, and unfitness for the place; that complaints had at different times been made of his negligent and reckless conduct to the defendant's representatives at Fargo; that, notwithstanding such complaints, he was retained in the same service, except during short intervals when he had been discharged two or three times for misconduct; that the plaintiff at the time of the injury had only been in the employ of the defendant about two weeks, and only about one week of that time with Bassett; that he worked as night brakeman; that on the night of the injury, and about 15 or 20 minutes before the accident, the yard-master called up the switching crew, who had been asleep for a short time, and ordered plaintiff to direct Bassett to move his engine so as to commence switching cars at the point named; that they were in haste to get ready for a train soon to come in from the east; that the plaintiff, as directed by the yard-master, urged Bassett to move promptly, on account of which angry words passed between them; that thereafter, while under the direction of the yard-master, they were backing some cars, and while he was standing on top of and near the rear end of the head car, which was furthest from the engine, the plaintiff gave a signal to the engineer to back seven or eight car lengths; that it was the duty of the plaintiff to give such signals, and of the engineer to obey them, and to continue backing until he was signaled to stop; that when he had backed about three car lengths he, without any warning to the plaintiff, and without any reason or necessity therefor, very suddenly, recklessly, and negligently reversed his engine without shutting off the steam, giving the train so sudden and violent a jerk as to throw the plaintiff off and inflict the injuries complained of. Clearly, this made a case for the plaintiff, unless overthrown by a successful defense.

It is claimed, however, by counsel for the defendant below, that there was evidence showing that the plaintiff was guilty of contributory negligence in two particulars: First, that he had knowledge of Bassett's incompetence, and ought, on that account, to have refused to serve with him; and, secondly, that he was standing too near the rear of the car without sufficiently guarding himself, by holding on or...