Northern Pac Co v. Herbert

Decision Date01 February 1886
Citation29 L.Ed. 755,116 U.S. 642,6 S.Ct. 590
PartiesNORTHERN PAC. R. CO. v. HERBERT. 1 Filed
CourtU.S. Supreme Court

The Northern Pacific Railroad Company is a corporation created under the laws of congress to construct a railroad and a telegraph line from Lake Superior to Puget sound. In 1879 it had constructed and was operating the road from Duluth, in Minnesota, to Bismarck, in Dakota. On the twenty-fourth of October of that year the plaintiff in the court below, the defendant in error here, was a brakeman in its yard at Bismarck, where its cars were switched upon different tracks and its trains were made up for the road. It was his duty, among other things, to set and to loosen the brakes of the cars whenever necessary, and whenever ordered to do so by the yard-master. At the time mentioned he was ordered to stop, with the brakes, two cars which had been switched upon a track in the yard. In obedience to this order he went upon the rear car and attempted to set the brake attached to it, but the brake was so badly broken and out of order that it could not be made to work. As soon as he discovered this he stepped on the forward car in order to stop it. The brake on that car was a 'step-brake,' and in order to work it he was obliged to place his foot on the step attached to the car below the top, and this brought his foot and leg between the two cars. This brake was also out of order, and while attempting to set it, his foot being upon the step, the car struck another car on the track, and was suddenly stopped. The draw-bar and bumper of the rear car had been pulled out, and for want of them the two cars, when the forward one was suddenly stopped, came violently together, crushing his leg, so that amputation became necessary. To recover damages for the injury sustained he brought this action against the company, alleging that it was its duty to provide good and safe cars, and machinery and apparatus of a like character for braking and handling them, and also to make rules and regulations for switching and handling them in they yard, and for notifying employes of the condition of defective and broken cars, so that they might not be subjected to unnecessary danger; but that it neglected its duty in these particulars, and thereby without his fault, he was injured as stated.

In its answer the company admitted the allegations as to the employment of the plaintiff and the injuries he had received, but set up that it was his duty to know, and that he did know, the condition of each of the cars, and that he carelessly put his leg between them when setting the brake of the forward car, and thus, through his own fault, suffered the injury of which he complains.

There was a verdict in favor of the plaintiff for $25,000. A motion for a new trial was made on various grounds; among others, that the damages were excessive. The court ordered that a new trial be granted unless he remitted $15,000 of the verdict, and in case he did so that the motion be denied. He remitted the amount, and judgment was entered in his favor for the balance, and costs of suit, which the supreme court of the territory affirmed.

For the reversal of the judgment several errors of the court below are assigned; but, so far as they are deemed material, they may be reduced to four: (1) In sustaining a challenge to a juror; (2) in denying a new trial on condition that the plaintiff should remit a part of the sum awarded by the verdict; (3) in refusing to dismiss the suit at the close of the plaintiff's case; (4) in refusing to charge that the plaintiff should have taken notice of the defects in the cars, and that he was guilty of such negligence in that respect as to deprive him of a right to recover.

W. P. Clough and George Gray, for plaintiff in error.

Thomas Wilson, for defendant in error.

[Argument of Counsel from pages 645-646 intentionally omitted]


1. As to the c

hallenge to a juror. It appears that one Weaver, summoned as a juror, testified that he was a lumber dealer, and that the company gave him a place on its right of way for a lumber-yard, without rent, and also that he had heard the accident to the plaintiff spoken of and explained. It was not shown, however, that the had any actual bias for or against either party, or any belief or opinion touching the merits of the case. He was, nevertheless, challenged, and the allowance of the challenge constitutes the first error assigned. It does not appear whether the challenge was for cause or was peremptory. Under the statute of Dakota each party is entitled to three peremptory challenges. It is for the party asserting error to show it; it will not be assumed. But if we regard the challenge as for cause, its allowance did not prejudice the company. A competent and unbiased juror was selected and sworn, and the company had, therefore, a trial by an impartial jury, which was all it could demand. U. S. v. Cornell, 2 Mason, 104; Heaston v. Cincinnati & Ft. W. R. Co., 16 Ind. 275, 279; Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74; Carpenter v. Dame, 10 Ind. 130; Morrison v. Lovejoy, 6 Minn. 349, 350, (Gil. 224.)

2. The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand. Hayden v. Florence Sewing-mach. Co., 54 N. Y. 221, 225; Doyle v. Dixon, 97 Mass. 208, 213; Blunt v. Little, 3 Mason, 102, 107.

3. The dismissal of the suit at the close of the plaintiff's case was moved on the ground that the plaintiff had failed to establish a cause of action; and in support of this position it is contended that the plaintiff was a fellow-servant of the officer or agent of the company who was charged with the duty of keeping the cars in order, and therefore could not recover against the company for injuries suffered by reason of the latter's negligence, and that this exemption from liability is declared by the statute of Dakota. The general doctrine as to the exemption of an employer from liability for injuries to a servant caused by the negligence of a fellow-servant, in a common employment, is well settled. When several persons are thus employed there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which are essential to his safety. In undertaking the service he assumes that risk, and, if he should suffer, be cannot recover from his employer. He is supposed to have taken it into consideration when he arranged for his compensation. As we said on a former occasion: 'He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid.' Chicago & M. R. Co. v. Ross, 112 U. S. 377-383; S. C. 5 Sup. Ct. Rep. 184.

It is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from defective machinery or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him. This doctrine has been so frequently asserted by courts of the highest character that it can chardly be considered as any longer open to serious question.

It was substantially declared in the recent case of Hough v. Railway Co., 100 U. S. 213, where we said that notwithstanding a railroad corporation may be controlled by competent, watchful, and prudent directors, and care and caution are exercised in the selection of subordinates at the head of the several branches of its service, its obligation still remains to provide and maintain in a suitable condition the machinery and apparatus to be used by its employes; and that it 'cannot, in respect to such matters, interpose between it and the servant, who has been injured without fault on his part, the personal responsibility of an agent, who, in exercising the master's authority, has violated the duty he owes as well to the servant as to the corporation.' In that case the engine of the railroad, coming in contact with an animal, was thrown from the track over an embankment, whereby the whistle fastened to the boiler was forced out, thus permitting hot water and steam to escape, which so scalded the engineer as to cause his death. The engine was thrown from the track because the cow-catcher or pilot was defective, and the whistle was forced out because it was insecurely fastened. These defects were owing to the negligence of the company's master mechanic and the foreman of the round-house, to whom was committed the exclusive management of the motive power of the company, with control over all the engineers employed. In an action the widow and child of the deceased, the company set up as a defense that if the alleged defects existed, which it denied, they were owing to the negligence of those servants, for which the company was not liable. The court held that the company was not thereby exonerated from liability.

In Flike v. Boston & A. R. Co., 53 N. Y. 549, it

was held by the court of...

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