Ralph Jacobs v. Southern Railway Company

• Decision Date: 22 May 1916
• Docket Number: No. 326,326
• Citation: 36 S.Ct. 588,241 U.S. 229,60 L.Ed. 970
• Parties: RALPH B. JACOBS, Plff. in Err., v. SOUTHERN RAILWAY COMPANY
• Court: U.S. Supreme Court

241 U.S. 229

36 S.Ct. 588

60 L.Ed. 970

RALPH B. JACOBS, Plff. in Err.,

v SOUTHERN RAILWAY COMPANY.

No. 326.

Argued April 27, 1916.

Decided May 22, 1916.

Mr. Edward P. Buford for plaintiff in error.

Messrs. William Leigh Williams and L. E. Jeffries for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

Action under the Federal employers' liability act, as amended, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657; 36 Stat. at L. 291, chap. 143.

Plaintiff in error, who was also plaintiff in the trial court, and we shall so designate him, was in the service of the railway company, in interstate commerce, as a fireman. He received injuries while attempting to get on a moving locomotive. He charged negligence against the company and sued for the sum of $20,000 damages. The negligence charged was the causing and permitting to be within dangerous proximity to the tracks of the company a pile of loose cinders over which plaintiff stumbled and slipped, and was drawn under the locomotive.

The railway company, among other defenses, pleaded the following:

'That the said plaintiff was guilty of gross contributory negligence in attempting to board the engine with a water cooler filled with water in his arms, and was also guilty of gross contributory negligence in attempting to board the engine from a pile of cinders along the track; and was also guilty of gross contributory negligence in running along the track, and in attempting to board the engine without looking and seeing the pile of cinders, which could have been observed with any caution and care on his part; that the said pile of cinders had been allowed to accumulate in the same manner and in the same place as they were at the time of the accident for many years prior to the accident, and that these facts were well known to the plaintiff, and that he assumed the risk of danger from said pile of cinders, if there was any danger in allowing them to remain there.'

There were two trials of the action. The first trial resulted in a verdict for plaintiff for $12,000, upon which judgment was entered. The judgment was reversed by the supreme court of appeals for error in the instructions.

Upon the second trial the verdict was for defendant. The court refused to set it aside and grant a new trial, but ordered judgment in accordance therewith. The supreme court of appeals refused a writ of error and supersedeas, the effect of which was to affirm the judgment of the trial court.

The facts are practically undisputed. Plaintiff was engaged with a crew in shiftings cars in the railway company's yard at Lawrenceville, Virginia. He descended from the engine at the depot to get drinking water for himself and the engineer. He returned with a can of water to mount the engine, and then as to what took place he testified as follows: 'I came down the railroad road . . . and came across the track on the crossing. At the time the train was pulling out of the last track. So I waited until the train was pulling up there, and aimed to catch it, and when I aimed to catch it I made three or four steps to get on it, you know, and I got to the cinder pile before I knew it, and I tripped, and went under the engine. . . . The cinder pile tripped me.' The train was moving 'just about as fast as anybody could walk; that is, pretty peart walking; not over 3 or 4 miles an hour at the most.' He further testified that it had been customary ever since he had been on the road 'for the trainmen to get on and off the engine when it was going that way;' had seen it done hundreds of times a day and had never seen any rule forbidding it. He was about 7 feet from the cinder pile when he 'aimed to' catch the engine, and the cinder pile was about 18 or 24 inches deep, and he indicated its length to be about as long as the court room and as wide as the distance from himself to a person he indicated. Describing how the cinders caused him to fall, he said they were piled 'right up against the rail' and 'sloped from the rail up. As I caught the engine, I made several steps, and as I hit the cinder pile they commenced miring just like mud, and it caused me to fall, and when I fell in the cinder pile the journal box kept hitting and I couldn't get up. I tried, but I couldn't. . . . Every time I made an effort the cinder pile gave way with me. . . . I fell down behind the cinder pile. The cinder pile was sloping, and I fell down by the journal box, and the train was passing, and I rolled down next to the rail.' He further testified that if he had fallen from some other cause, he could have got out of danger; and that, when he started to get on the engine, he was not conscious of any danger from coming in contact with the pile of cinders; that it was not in his mind at all. But he testified: 'I had knowledge of it, of the cinders being there, but I did not know that it was dangerous. I had forgotten them being there at the time. I was watching when I was going to step on the engine—watching my feet, where I was going to step, and was not noticing the cinder pile. . . . It was not in my mind.'

It is not disputed that it was customary, and had been for eleven or twelve years, for the ashpans of the engine to be cleaned upon the tracks, and the ashes then drawn out from the tracks, and, when a lot had accumulated, taken away. The piles were of irregular height.

Plaintiff contends that upon this evidence he was entitled to recover under proper instructions, and that the trial court followed the decision of the supreme court of appeals in giving an instruction at the second trial which it had refused to give at the first trial. The instruction is as follow:

'The court instructs the jury that if they believe from the evidence that the existence of the cinder pile was known to the plaintiff, or that he had been working for the Southern Railway at Lawrenceville for more than a year, and that the cinders had been piled at the same place in the way described by the witnesses for many years prior to the accident, and that the plaintiff had failed to show that he had made complaint or objection on account of the cinder pile, then he assumed the risk of danger from the cinder pile, if there was any danger in it, and the act of Congress approved April 22, 1908, permits this defense, and the jury should find their verdict for the defendant.' [116 Va. 195, 81 S. E. 99.]

This instruction, it is contended, became 'the law of the case' by the decision of the supreme court of appeals, and precluded the instructions which plaintiff asked, and which otherwise would have been correct, it is insisted, and should have been given.

The instructions refused presented these propositions: (1) The unsafe character or condition of the railway was of itself no defense to the injury caused thereby. (2) Knowledge of it by plaintiff might constitute contributory negligence and diminish the amount of recovery. (3) If the company suffered or permitted the cinders to be placed and to accumulate alongside of its main line in dangerous proximity to the railroad track or road, and plaintiff's injury resulted in whole or in part from such negligence, or if the cinders constituted a defect...