Northern Pac. R. Co. v. Nickels

• Decision Date: 23 May 1892
• Docket Number: 49.
• Citation: 50 F. 718
• Parties: NORTHERN PAC. R. CO. v. NICKELS.
• Court: U.S. Court of Appeals — Eighth Circuit

50 F. 718

NORTHERN PAC. R. CO. v. NICKELS.

No. 49.

United States Court of Appeals, Eighth Circuit.

May 23, 1892

Tilden R. Selmes, for plaintiff in error.

F. D Larrabee, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges.

SANBORN Circuit Judge.

H. W Nickels, who was the plaintiff below, brought an action against the Northern Pacific Railroad Company for personal injury, which he alleged was caused by the corporation's negligence. The defendant corporation denied its negligence pleaded that the plaintiff, Nickels, had been guilty of negligence that contributed to his injury, and that he had agreed to be bound by, and had then violated, the rule of the company set forth below. The plaintiff had been an employe of the defendant from June 26, 1889, until December 16, 1889, when he was injured, and during this time had served, sometimes as brakeman and at other times as switchman, in the yard at Glendive. On the 12th day of November, 1889, he signed and delivered to the defendant a writing entitled a 'personal record,' consisting principally of questions and answers relative to his age, residence, former occupations, and general qualifications for the position of brakeman, from which the following is an extract:

'(13) Have you read and do you understand the following abstract from the Book of Rules of the Northern Pacific Railroad Company. Yes. Caution as to personal safety. (25) Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars or engines cannot be uniform in style, size, or strength, and is liable to be broken, and as from various causes it is dangerous to expose between the same the hands, arms, or persons of those engaged in coupling, all employes are enjoined before coupling cars or engines to examined so as to knoew the kind and condition of the drawheads, drawbars, links, and coupling apparatus. * * * Coupling by hand is strictly prohibited. Use for guiding the link a stick or pin. Each person having to make couplings is required to provide a proper implement for the purpose above specified. * * * All will be held responsible.' (14) Do you agree to comply with all the requirements of the foregoing rule in case you enter into the company's employ? Yes. (15) You are notified that, if you or any other employe chooses to violate the requirements of any other rules contained in the Book of Rules of the Northern Pacific R.R. Company, you do so solely at your own risk. The company expects you and all other employes to comply strictly with all its rules and regulations, and does not and will not in any case acquiesce in or consent to any violation of them. Do you understand that all violations of the rules of the company by you or any other employe of the company, whether habitual or otherwise, are not consented to or acquiesced in by the company? Yes.'

Over the objection of the defendant, the court below permitted the plaintiff and others, who had been employed as brakemen by the defendant, to testify that none of the employes of that corporation engaged in coupling cars had, so far as their knowledge extended, ever used a stick or pin in coupling them; that those engaged in this work at Glendive, where the accident happened, had constantly coupled the cars without its use, and that the division superintendent of the corporation, whose office was in the upper story of the depot, in the center of this yard at Glendive, had frequently seen the employes thus coupling without sticks, and made no complaint or objection; and upon this subject the court charged the jury that it was a question of fact for them to determine from all the evidence whether this rule, requiring the use of a stick or pin in coupling the cars, was in force at the time of the accident, and that if they found it was not in force, the plaintiff could not be deemed guilty of contributory negligence because he failed to comply with this rule.

On the 13th day of December, 1889, plaintiff commenced to work as a switchman in the railroad yard at Glendive, under the direction of the yard master, with an engine that was so defective that unusually large volumes of steam constantly escaped from its cylinders and enveloped the engine and some of the cars. One the next day, and again on the succeeding day, he notified the yard master of this defect, and the danger from it, and protested against working with it. The yard master requested the plaintiff to continue at his work, promising on one day that he would see if he could get the engine repaired, and on the next day that they should have a new engine very soon. About 9 o'clock in the evening of December 16th, as the yard master's crew was making up a freight train, he directed the plaintiff to couple a car that this defective engine was moving back, about as fast as a man would walk, to a stationary car it was approaching. Both these cars were furnished with double deadwoods, that is, cast-iron projections, 8 inches square, about 8 inches above the draw-bar, and about 18 inches distant from it on each side thereof, so constructed that, as soon as the drawbars of the approaching cars touched, the double deadwoods would strike each other. The night was dark. Plaintiff carried his lantern on one arm, and, when the moving car was about 8 feet distant from the stationary car, he stepped in between the rails, grasped the link attached to the moving car, and walked back towards the stationary car, until he came within about 18 inches of it, when the defective cylinders of the engine emitted such unusual volumes of steam that he could not see anything. He immediately dropped the link, and started to escape. As he did so, he raised his arm, and the deadwoods caught and crushed his wrist. Plaintiff knew that foreign freight cars sometimes had double deadwoods, and that it was his duty to look for them. He saw them on the moving car as he stepped in front of it, and looked for them on the stationary car, but, owing to the darkness, could not see them when he stepped in and started towards them, and did not see them before the steam blinded him, and did not know there were double deadwoods on that car until they caught his wrist. Cars with double deadwoods can be safely coupled, if there is nothing to obscure the light so that the switchman can see their location, by reaching under them with the right hand to guide the link, and over them with the left hand to drop the pin; but it is far less difficult and less dangerous to couple cars with single deadwoods. The freight cars of the Northern Pacific Railroad Company and of western roads generally are provided with single deadwoods.

On this state of facts defendant's counsel requested the court to instruct the jury to return a verdict for the defendant. This request was refused, plaintiff had a verdict, and this result is assigned as error.

It was the duty of the defendant railroad company to use ordinary care to supply its employes with reasonably safe machinery and appliances with which to operate its railroad, and to use due diligence in keeping the machinery furnished in proper repair. There is ample and convincing evidence to sustain the conclusion, to which the jury must have arrived, that the corporation failed in the performance of this duty, and that its culpable negligence in continuing in service this defective engine, after repeated notices of its defects and warnings of the dangers of its use, resulted in the...