Northern Pac. R. Co. v. Hogan

• Decision Date: 16 July 1894
• Docket Number: 357.
• Citation: 63 F. 102
• Parties: NORTHERN PAC. R. CO. v. HOGAN.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 102

NORTHERN PAC. R. CO. v. HOGAN.

No. 357.

United States Court of Appeals, Eighth Circuit.

July 16, 1894

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

F. D Larrabee, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District judge.

THAYER District Judge.

The facts disclosed by the record in this case, which was a suit for personal injuries, are substantially as follows Cornelius Hogan, the defendant in error, was a brakeman, who had been in the service of the Northern Pacific Railroad Company, the plaintiff in error, for about two years prior to May, 1892. At that time he was serving the company in the capacity of head brakeman on a regular freight train running between Jamestown and Fargo, in the state of North Dakota. This train usually arrived in Jamestown from the west at about 7 o'clock in the evening, and left shortly thereafter for Fargo; but on the occasion of the accident, to wit, on the evening of May 10, 1892, it was an hour or two late. It frequently happened that some car loads of live stock had to be taken up and placed in the train at Jamestown, and such was the case on the evening of May 10 1892. It appears from the testimony that, after the train in question arrived at Jamestown from the west, the train crew, including Hogan, who were to take charge of the same from that point east to Fargo, were called, and proceeded with the discharge of their several duties in the usual and ordinary manner. Hogan and the conductor of the train took the numbers and seals of all the cars composing the train, after which they went to the yardmaster's office, which was some distance east of the forward or eastern end of the train. After waiting there a few moments for orders and instructions, they again went to the forward end of the train, with a view of attaching the road engine thereto, which was then standing on an adjoining side track. The road engine was let out onto the track on which the freight train was standing, and was backed down to within a few feet of the forward car, preparatory to being coupled thereto when the train was made up and ready to start. At about the same time, another engine, termed the 'helper,' was let out onto the main track, by Hogan, and was sent back to the rear of the standing freight train for the purpose of being attached thereto, so as to help push the train out of the station on an ascending grade. During these several occurrences, it seems that a party of men were engaged at the rear or west end of the train in the act of attaching three car loads of live stock thereto. A switch engine was being used for that purpose. It is an undisputed fact that owing to the length of the train, consisting, as it did, of about 30 cars, and owing to the darkness of the night, neither Hogan nor the conductor could see what progress this party of men had made with their work, nor in what part of the train they were placing or attempting to place the three cars of live stock; but they did know that these cars were to be placed in the train, and that a party of men were engaged in that service at the rear end of the train with a switch engine. Hogan testified that the conductor finally gave an order to couple the road engine to the outgoing train, saying at the same time, 'Those three cars of stock have been put on the rear end of the train. ' The conductor testified that he said: 'We will couple up now, so as to get ready to go. I think they are putting the stock on the rear end, on the hind end, of the train. ' In the act of making the coupling, pursuant to the order of the conductor, Hogan lost the thumb and forefinger of one of his hands, by their being crushed between the bumpers of the car and the engine. There was evidence tending to show that the standing train of freight cars was pushed forward about six or eight inches by the movement of one or the other of the engines at the rear end of the train, either the switch engine or the 'helper,' and that this unexpected movement of the train occasioned the injury of which the plaintiff complains. In the circuit court a judgment was rendered against the railroad company for $4,500, to reverse which it has brought the case to this court. The railroad company relies upon the following propositions to obtain a reversal of the judgment: First, that by virtue of a statute of the state of North Dakota, where the accident occurred, the railway company is not liable to Hogan for the negligent act of the conductor of the freight train, if, indeed, he was guilty of any negligence; and, second, that, upon the undisputed evidence in the case, the accident was due to one of the ordinary risks of the employment, and that the railway company was in no wise at fault.

The statute to which reference is thus made is section 3753 of the Compiled Laws of North Dakota for the year 1887, and is as follows:

'An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.'

It admits of no doubt, we think, that the interpretation placed upon tha statute by the supreme court of North Dakota would absolve the railway company from liability, on the state of facts disclosed by the...