Rogers v. Louisville & N.R. Co.

• Decision Date: 28 May 1898
• Docket Number: 130.
• Court: U.S. District Court — Western District of Tennessee
• Parties: ROGERS v. LOUISVILLE & N.R. CO.

88 F. 462

ROGERS v. LOUISVILLE & N.R. CO.

No. 130.

United States Circuit Court, W.D. Tennessee.

May 28, 1898

Thomason & Thomason, for plaintiff.

Sweeney & Farobough, for defendant.

HAMMOND J. (charging jury).

Because the plaintiff has filed to show, by a preponderance of the proof in this case, that her son lost his life by the negligence alleged in the declaration, I am constrained to direct that your verdict should be for the defendant, and it will be entered accordingly.

Technically this is all I need say to you, and we might end the case with that direction; but it is my great desire, and constantly my habit, whenever I take that course with a case, to justify as far as I am able to do so, the action of the court, by giving to the gentlemen of the jury the reasons that actuate me in giving that direction, so that it may find approval in your own intelligence, if it can find approval at all.

The great trouble about all these cases is the human sympathy that demands and overwhelmingly suggests to everybody that where a man loses his life through such a calamity as came upon this plaintiff's son, and he was in the service of a railroad company, we should like to see her compensated for the loss in some way, by having a sum of money that will help take care of her, in the absence of the son upon whom she depended. But it would be utterly impossible to introduce into our law the practice that would make a railroad company an accident or a life insurance company, to pay all of its employes who are hurt and injured in its service a sum of money to compensate those who are dependent upon them. There is no such law as that, and it is the greatest injustice to the railroad companies to proceed upon the theory of compelling them to pay money to everybody who is injured in their service. They do not get any pay, like accident insurance companies. You had a trial of an instance of that before you,-- that, where there is a life insurance policy or an accident insurance policy, the company gets its regular premiums, which are adjusted according to the circumstances of the case, and according to the risk, which premiums are supposed to compensate that company for its promise to pay damages when an accident occurs or when his life terminates. The railroad companies do not receive any such premiums as that. They pay high wages, and good wages, for the services that men do for them, and they pay them, and must pay them upon the theory that the man's wages compensates him for the risk that he takes; and every man who enters into the service of a railroad company agrees, when he goes into it,-- as a matter of bargain and as a matter of contract, he agrees with the railroad company,-- that he will take the ordinary risks that belong to the service into which he enters. There is not in the history of human affairs any more dangerous employment, scarcely, than that of a railroad brakeman. Perhaps there are some more hazardous employments, in the handling of dynamite, gun cotton, powder, and explosives of that kind, but, outside of that class of business, men do not engage in any business so hazardous, and with so many risks attendant to it, as that of a railroad brakeman, and all that risk he takes when he goes into the service of the company; and statistics show that a very, very large per cent. of the men who go into it are sooner or later in some way injured or lose their lives.

Now, the railroad company, on its part, enters into a bargain that it will furnish to the men who work for it reasonably safe appliances, that are known to the business, for the purpose of their protection against the dangers that are involved in the service; and the law rigidly requires that every railroad company shall perform that obligation of its contract, and that it shall have its appliances for doing the work in a reasonably safe and proper condition; if the safety depends upon the structures and appliances, that the railroad shall have that which is reasonably safe. They are not required to have mechanics, one structure would be safer than another. We are a great deal safer if we take an ocean greyhound to go across the Atlantic ocean than we would be were we to take a common, everyday tramp ship, but if we take the tramp ship we take the risks that attend the tramp ship. The company that runs the tramp steamer is not bound to furnish us all the safety that we find upon the ocean greyhound. And so it is with these railroads. They are not bound to furnish the best appliances that are known to the art of railroading to their employes. They have the right to furnish such as they are able to pay for, such as their business demands, and such as are in common use among railroad corporations in doing the transportation of the country, and that appliance which is ordinarily in use by them and considered safe is that which they have the right to supply; and, when a man goes into their service, he knows what kind of railroad company it is, what kind of appliances they have, and he knows what their ordinary method of doing business is, and he takes the risks that are incident to that service.

Now, we know, and it is in this record, that in making up these freight trains, for passing over the railroad, in what we call the 'freight transportation department,' the company may use cars that are furnished with air...