Northern Pac. R. Co. v. Charless

• Decision Date: 03 August 1892
• Parties: NORTHERN PAC. R. CO. v. CHARLESS.
• Court: U.S. Court of Appeals — Ninth Circuit

51 F. 562

NORTHERN PAC. R. CO. v. CHARLESS.

United States Court of Appeals, Ninth Circuit.

August 3, 1892

John H Mitchell, Jr., for plaintiff in error.

A. K McBroom and Prather & Danson, for defendant in error.

Before DEADY, HAWLEY, and MORROW, District Judges.

MORROW District Judge.

This action was brought by Hugh Charless, defendant in error, the plaintiff below, to recover the sum of $25,000 for damages for personal injuries, alleged to have been received by him while in the employ of the Northern Pacific Railroad Company defendant in error, as a section hand engaged at work on the line of the road at a point near Cheney, then in the territory, now in the state, of Washington. The case was tried before a jury, and the plaintiff had a verdict and judgment for $18,250 and costs. A motion for a new trial was made and denied, and thereupon the company sued out this writ of error. The complaint originally stated two causes of action, the first of which consisted in a statement of permanent injuries alleged to have been received by plaintiff while assisting in the course of his employment as a section hand in operating a defective hand car upon one of the sections of the company's line of railroad. The second cause of action set forth in the complaint consisted of allegations to the effect that at the time of the injury there were known to the medical and surgical professions certain medical, surgical, and remedial appliances, by the proper use of which the plaintiff could have been almost, if not entirely, healed and cured of his injuries; that the company failed, neglected, and refused to use or have or cause to be used such appliances and medicines for the healing of plaintiff, whereby plaintiff had been rendered a cripple for the remainder of his life, unable to work, or move his lower limbs or the lower part of his body. The defendant demurred to the first cause of action, and moved to strike out the second. The demurrer was overruled, and the motion to strike out granted. The action of the court in overruling the demurrer to the first cause of action is claimed as error, on the ground that the complaint, as it was allowed to stand for trial, did not state facts sufficient to constitute a cause of action.

The material allegations of the complaint relating to the first cause of action are that in the operation of defendant's railroad it was necessary at all times to keep in employment and service of defendant a number of laborers for the maintenance of defendant's track and roadbed, and it became and was defendant's duty, in the employment of said laborers in said service, to furnish them with competent and efficient means and appliances for the proper discharge of their duties in said service, and to furnish them with necessary information as to the passing of trains on defendant's road to protect themselves from injury by such trains while engaged in said service. That plaintiff was on the 28th day of August, 1886, one of defendant's servants and employes whose duty it was to maintain a certain section of defendant's track and roadbed, under the charge, control, and superintendency of one William Kirk, who was the section boss of the section running west from Cheney, and as such section boss the agent of the defendant in maintaining the track and roadbed, and had the superintendency, direction, and control of the work and the means and appliances therefor. That at said date defendant had in its employ at Cheney a telegraph operator, whose duty it was to know the time of passing trains over defendant's road in the vicinity of Cheney, and the times of their arrival and departure therefrom, and to inform defendant's servants and employes, whose safety and welfare might be endangered thereby, of the times of the running of such trains. That in the carrying on of said work of maintaining said track and roadbed it became and was necessary for said servants and employes to use a certain hand car under the direction and control of the section boss.

That this hand car was sufficient for its ordinary uses, but in case of imminent danger from collision it was defective in not having a sufficient brake; which, instead of brake blocks to rub and stop the wheels, was only a short piece of timber fastened to said car at one end, and made to rub upon one of the wheels by pressing thereon with the foot. That the section boss and road master knew of this defect, but told plaintiff that the brake was sufficient for the purposes of its use, and plaintiff did not know different until the happening of the accident in which he was injured. That on the said 28th day of August, 1886, while in the service and employment of the defendant as aforesaid, and during working hours, plaintiff, together with other like servants and employes of defendant, under the direction and superintendency of the section boss, and with the knowledge of said telegraph operator, left Cheney on said hand car, going west, being ignorant of any approaching train on the road from the west, and of any danger to his person on account of the running of any train in that vicinity. That when about two miles west from Cheney, near a deep cut and curve in the road, sufficient to obscure an approaching train, while plaintiff was standing on the front end of the hand car, working at the lever propelling the same, with his back towards the direction in which they were going, the section boss standing on the rear end of the hand car looking in the direction they were going, having full charge, control, and direction of the hand car, which was then running at the rate of about 10 miles an hour, the section boss for the first time informed plaintiff that a freight train traveling east was about due at that place. That plaintiff knew that said hand car was then not far from said cut and curve in said road, immediately became apprehensive for his personal safety. That immediately upon informing plaintiff that said train was then about due at said place said section boss exclaimed, 'There she comes now; put on the brake. ' That thereupon one of the employes nearest the brake put it on, and tried to stop the car, but failed to do so, or to diminish its speed sufficiently, as it appeared to plaintiff, to prevent a collision with the approaching train, whereupon plaintiff turned to see how near the train was, and what the chances of escape were. That he then saw the train but a short distance from them, and approaching very rapidly, without slackening its speed, and it appeared to plaintiff that a collision with the train was inevitable, and that his life would be lost thereby, unless he did something upon that instance to save his life. That at that time there were tools and different kinds of repair materials on the hand car, so arranged along its sides that it appeared to plaintiff that it would be impossible for him to reach either side of the car to jump therefrom to the side of the track, but it did appear to him that he could jump from the front end to the side of the road, and avoid injury, and with this belief he did jump, with the intention of saving his life. That when he jumped from the car, instead of alighting upon his feet on the side of the road, as he expected, he fell on the road between the rails, and before he could recover himself the hand car was about to run over him, whereupon he put up his foot against the approaching hand car to stop it, and prevent it running over him, but the car was coming towards him with such velocity that he could not stop it, and it ran over and upon him in such a way as to break and dislocate one of the vertebrae near the middle of his spinal column, and to cause him other great and permanent injuries about his back, chest, and legs. That during all the time the engineer and conductor of the freight train knew of the danger in which plaintiff was then placed, and of a collision with the hand car, and of the probability thereby of injuring and killing plaintiff; yet the engineer and conductor of the freight train negligently and recklessly failed and refused to slacken the speed of the train, and continued to run it at a great speed, to wit, of 25 miles an hour, thereby causing plaintiff great fear of immediate death by said train running over him and causing him to make the efforts he did to save his life. That the telegraph operator at Cheney knew that plaintiff left Cheney on said hand car, and that a freight train was about due at that place, going east, and that the hand car, going west on said section at that time, would be in great danger of a collision with the freight train, and the plaintiff would be in great danger of personal injury and loss of life thereby. That the telegraph operator negligently and recklessly failed, neglected, and refused to inform plaintiff thereof, whereby he has placed in the position of great imminent peril and danger, which, without his fault, resulted in the injury to him as stated. That defendant negligently and knowingly permitted and caused plaintiff to use in its service said car having a defective brake, whereby plaintiff was made and caused to rely on the sufficiency of said brake until he had to jump from the car, causing the injuries stated.

It is urged against the sufficiency of this complaint that it contains no allegation charging negligence upon the company or upon any one for whose acts the company was responsible. The statement of the case for whose acts the company was responsible. The statement of the case made by the complaint is subject to some criticism. It is not in the most approved legal form, a plain and concise statement of facts constituting the cause of action, but we are of the opinion that, taking all the allegations of the complaint together, they in effect charge--...