Northern Pac. Coal Co. v. Richmond

• Decision Date: 14 November 1893
• Docket Number: 104.
• Citation: 58 F. 756
• Parties: NORTHERN PAC. COAL CO. v. RICHMOND. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

58 F. 756

NORTHERN PAC. COAL CO. v. RICHMOND. ^[1]

No. 104.

United States Court of Appeals, Ninth Circuit.

November 14, 1893

McBride & Allen, for plaintiff in error.

Forster & Wakefield, for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

Thomas J. Richmond, by his guardian, as plaintiff, brought an action against the Northern Pacific Coal Company, defendant, to recover for injuries suffered by plaintiff while in the service of the defendant, engaged in the mining of coal at Roslyn, in the state of Washington. The plaintiff alleges that through the negligence of the defendant, its agents and servants, he was thrown upon the track of the defendant's tramroad, used for hauling coal out of its mine, and a loaded car passed over his arm, and crushed it, so that amputation was required, whereby his arm was lost. The defendant denied these allegations, and alleged that the injury was caused by the plaintiff's carelessness or negligence. A judgment was rendered for the plaintiff for the sum of $8,000.

The facts are substantially as follows: The plaintiff was 14 years and 2 months old. He and his father and a brother were all in the employment of the defendant in its coal mine. The plaintiff was employed as a 'trapper.' There were two stations, with doors, in the tunnel which led into the workings of the interior of the mine. At these stations boys were employed to open and close the doors for the passage of the coal cars as they were drawn in and out of the mine by mules. These boys were called 'trappers.' The train usually consisted of three or four cars, and there were three or four trains running in the mine at the time of the accident. There was a driver to each train, who had charge of the mules and the running of the train. The plaintiff had been in the employment of the mine for several months, and was paid a fixed rate of wages. It was not uncommon for the 'trappers,' when a loaded train went out of the mine to ride out on the cars, and return with the train; there being no duty to perform at the trap in the mean time. In a few instances the plaintiff had taken the place of the driver of the train, and had received driver's pay therefor. It appears that the plaintiff was a boy of ordinary intelligence, and understood the working of the trains. The driver in charge of the train which caused the injury had been employed in that capacity for some weeks. The plaintiff testified that on the morning of the day when the accident occurred, the boss told the 'trappers' that he wanted them to help the drivers that day, as he wanted to get out a big run of coal; that he said to them: 'Rush the drivers and help all you can.' He had so instructed them upon some previous occasions. There was along the track in the tunnel a place called the 'swamp,' not because it contained water, but because it was a low place. It was the custom, when the loaded train reached the point of descending the 'swamp,' to urge the teams down as fast as possible, in order that the momentum acquired might help the cars on the up grade after passing the 'swamp.' At the time of the accident, the driver and the two 'trappers' were all riding on the rear end of the last car when the train began to descend into the 'swamp.' The plaintiff, of his own accord, jumped off the car, and ran forward, and alongside, to throw off the brake. The driver called to him, 'Get there, Tommy.' It was the purpose of the plaintiff to get to the brake on the second car, and, as soon as he should reach the 'swamp,' to throw it off. This was ordinarily done by the driver. To reach the brake it was necessary for the plaintiff to run forward by the gangway at the left of the train, mount the platform or bumpers between the cars, and cross thereby to the right of the train, where the brake was. A large lump of coal had fallen from a previous train in passing out, and, as the plaintiff was running alongside, and had about reached the point where he would pass between the cars, he stumbled on the piece of coal, and fell, his right arm falling between the cars, where it was run over and crushed. The plaintiff testified that he knew that this lump of coal was lying there, and that he had noticed it on a previous trip that day, about 10 minutes before.

There are several errors assigned, but the argument of counsel for plaintiff in error is confined principally to the consideration of the whole testimony offered on behalf of plaintiff, and to the discussion of the question whether or not the refusal of the court to direct the jury to find a verdict for the defendant was error.

This assignment of error raises the question whether or not there was any evidence to go to the jury. It is claimed on behalf of the plaintiff in error that there was no evidence whatever of negligence upon the part of the corporation; that in assisting the driver on that day ...