Richmond & D. R. Co. v. Finley

• Decision Date: 02 October 1894
• Docket Number: 80.
• Citation: 63 F. 228
• Parties: RICHMOND & D. R. CO. v. FINLEY.
• Court: U.S. Court of Appeals — Fourth Circuit

63 F. 228

RICHMOND & D. R. CO. v. FINLEY.

No. 80.

United States Court of Appeals, Fourth Circuit.

October 2, 1894

George F. Bason, for plaintiff in error.

J. P Morphew, for defendant in error.

This case comes up by writ of error to the circuit court of the United States for the western district of North Carolina. The action is for damages against a railroad corporation for injuries sustained by its employe from one of its trains. The plaintiff was a brakeman on the train which injured him. Upon entering his employment as brakeman, he signed the following statement and contract, in the presence of a witness:

'Richmond and Danville Railroad Co., W.N.C. Division.

'October 26th, 1889.

'I fully understand that the rules of the Richmond and Danville Railroad Company positively prohibit brakemen from coupling or uncoupling cars except with a stick, and that brakemen or others must not go between the cars under any circumstances for the purpose of coupling or uncoupling, or for adjusting pins, etc., when an engine is attached to such cars or train; and, in consideration of being employed by the said company, I hereby agree to be bound by said rule, and waive all or any liability of said company to me for any results of disobedience or infraction thereof. I have read the above carefully, and fully understand it.'

A paper to this effect must be signed by every one entering the service of this company as brakeman, fireman, switchman, or flagman, before he is allowed to enter on his service. On 14th May, 1890, the train to which plaintiff was attached was employed at Asheville, N.C., in taking out cars loaded with coal from the yard, and putting them on a coal shute. The regular conductor of the train was absent. He had appointed another, however, in his stead. At the time of the accident, this substitute was at the coal shute, about one-fourth of a mile from the train, which was in the yard. With the train were the engineer and two train hands, the plaintiff and one Lyerly, and the fireman. The work on which they were engaged was this: The engine and tender would take the loaded cars one by one up the shute, discharge cargo, and come back for another load. From the testimony in the record there is some doubt who was in charge of the train when it would return to the yard for a loaded car. The learned judge who tried the case below left that question to the jury, and, as they found for the plaintiff, we will assume that the engineer was in charge of the train during the temporary absence of the conductor's order; but the locomotive was supplied with other brakes. The brake on the driving wheel is not in universal use. The train having been returned to the yard for another loaded car, the plaintiff told the engineer that the link of the cars was bent down so much that he could not get it up with a stick. He told him to raise it with his hand, and turn the link over. While he was doing this, the cars came together, and mashed his fingers, making amputation necessary. For this he brought his action.

Before GOFF and SIMONTON, Circuit Judges, and HUGHES, District Judge.

SIMONTON Circuit Judge (after stating the facts).

The question in this case is, was the plaintiff below guilty of contributory negligence in attempting to couple the cars by going between them? On this point the judge charged the jury as follows:

'If you believe that the engineer had charge of the movements and management of the cars with the assent or knowledge of the temporary conductor, the conductor being absent, then he had the authority of a conductor in giving directions to subordinate employes, and could waive the general rules and contracts of the company; and if you are satisfied from the evidence that the engineer directed plaintiff to go between the cars, and to place a bent link in position for coupling, which could not be done with the coupling stick, and he exercised ordinary care in doing as he was directed, then he is entitled to recover compensatory damage for the injuries sustained.'

We are of the opinion that this was error. There is too great a tendency to clothe subordinate employes with the power and duty of vice principals, and then to conclude that they represent the master in every respect, and as fully as if he were present. We have alluded to this in Thom v. Pittard (decided at our last term) 62 F. 232. Be this as it may whatever may be the authority of a person, himself an employe on a train, over other coemployes on the same train, he and they are bound to respect and obey the general rules and regulations of their common master, whose orders press equally upon each of them, coming with the highest sanction, and each of them must know that the other cannot rescind...