Shumacher v. St. Louis & S.F.R. Co.

• Decision Date: 08 June 1889
• Citation: 39 F. 174
• Parties: SHUMACHER v. ST. LOUIS & S.F.R. CO.
• Court: U.S. District Court — Western District of Arkansas

39 F. 174

SHUMACHER v. ST. LOUIS & S.F.R. CO.

United States Circuit Court, W.D. Arkansas.

June 8, 1889

Syllabus by the Court

A party is guilty of gross negligence if he fails to exercise the care required of him by the law. This care required by the law is such care as is necessary under the circumstances to secure the protection of the lives, persons, and property of other persons.

Gross negligence is the absence of the care necessary under the circumstances to secure protection to life, person, and property. The entire absence of that prudent and proper care necessary to render safe life, person, and property, and the failure to exercise such care, shows a conscious indifference to consequences, which makes a state of case in which there is constructive or legal willfulness.

In a case where, as a probable consequence, the danger is very great, the greater the degree of care required. In such a case the law requires the very highest possible care to prevent an injury.

An act characterized by a high degree of negligence, or, as it is familiarly called, 'gross negligence,' is the counterpart of a willful act. When the danger is very great and the care to prevent disaster is very slight, or none at all, the neglect of a party becomes a willful act in law.

The highest duty of man is to protect human life, or the person of a human being. That duty is never performed so as to escape responsibility until all possible care, under the circumstances, has been exercised.

If a conductor in charge of a gravel train was aware of the peril of a party who was in a position of danger, or might by the exercise of ordinary care have discovered it in time to have avoided the injury to the party plaintiff, that he permitted the danger to be created; that he thereafter, and up to the time of the collision, failed to use the means within his power with a proper degree of care consistent with the safety of those on board the train to avoid the infliction of such injury to them as would spring as a probable, reasonable, and natural consequence from the act,-- a state of case would be created which would indicate such a degree of indifference to the rights of others as to warrant the characterization of such conduct as recklessness of such a character as to leave no place for the doctrine of contributory negligence in the case.

The fact that one has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. An act may be legally willful without a direct intent. It may be so willful if reckless.

A court cannot interfere with a verdict on the ground of excessive damages, unless such damages are so excessively large and disproportionate as to warrant the inference that the jury was swayed by prejudice, preference, partiality, passion, or corruption.

If an injury is charged in a complaint to have been negligently done, a plaintiff may prove any degree of negligence although it may be such a degree as to make a case of constructive or legal willfulness.

If a pleading is too narrow to cover the proof it can be widened in a case where all the issues which will be embraced by the amended pleading were presented to the jury at the time of the trial.

If neither the actual nature of the case, nor the real issue between the parties as it has been tried, would be changed by an amendment, the same should be permitted in furtherance of justice, even after verdict.

This is a suit against defendant for damages, plaintiff claiming in his original complaint that he was injured by the negligence and carelessness of defendant in not providing suitable and proper brakes for defendant's cars; that he was on a gravel train of defendant as an employe; that he was so injured by defendant, while its employes were engaged in switching cars, by reason of defective brakes with which said cars were supplied by defendant. In the amended supplemental complaint plaintiff says the injury to him was caused by the defendant through its agents, who so negligently and improperly managed the said train that the plaintiff was knocked off the same, and the cars of defendant ran over him. Plaintiff says it was the duty of the defendant to make and enforce suitable regulations as to the manner of switching and making up trains, and regulating the speed thereof, and providing a sufficient number of brakemen to check and control said cars while switching, and at all other times, and to manage its train so as not to endanger the lives or limbs of its servants; that the defendant violated its duty to plaintiff in the said particulars, and the same wholly neglected and failed to perform; and that by said negligence of said defendant the plaintiff was run over and injured. The proof shows the wheels of a car ran over the left foot of plaintiff, injuring it so his left leg had to be finally amputated close up to his thigh. The plaintiff claimed $15,000 damages. The jury rendered a verdict in his favor for $8,000 damages. The defendant filed a motion for a new trial containing the following causes:

'Because the verdict is contrary to law; because the verdict is contrary to the evidence; because the verdict is contrary to both law and evidence; because of error of law in refusing to give instructions from one to nine, inclusive, as asked for by defendant; because the court erred in modifying instructions as asked for by the defendant, over the objection of defendant, and by giving the same as modified to the jury; because the court erred in giving instructions numbered from three to eleven, inclusive, as asked for by plaintiff, over the objections of defendant; because the verdict is not supported by the evidence.'

George A. Grace and J. P. Byres, for plaintiff.

Clayton, Brizzolara & Forrester, for defendant.

PARKER, J., (after stating the facts as above.)

How did the employes of the defendant, or, more properly speaking the conductor, as he was in charge of that train, and responsible for its management, make the switch at the time of the accident? The evidence shows that the engine and four loaded cars, they being loaded with gravel, were stopped on the main track. The engine was detached and run up the road to pass a switch, and when it was run past this switch it was backed and attached to 10 cars loaded with gravel which were standing on the switch. It was then run far enough up a steep grade of the track to pull the cars off the switch and place them on the main track. Then the engine was detached from the 10 cars, and they were let go down a steep grade until the front one of the 10 struck the rear one of the four left on the main track; and this was done with but one brakeman using one brake to check the increasing velocity of these 10 loaded gravel-cars. The witness Kinney says: 'The cars came down pretty hard,--pretty fast,-- and the further they came the faster they came, and struck pretty hard. I think it struck harder than usual. It was down grade. Was a steep grade. It is harder to hold on a down grade. ' The brakeman Gifford says: 'Grade was steeper than he thought it was. Cars got start of me a little, and when I saw they were going to hit a little too hard I hallooed to the men 'Look out.' ' He further says: 'Question. You say you were going to strike harder than you ought to? Answer. Yes, sir; harder than cars ought to strike to be safe on making a coupling. ' In describing how the switching was done Gifford says: 'Pulled ten loaded cars, loaded with gravel, off the switch, took them up a steep grade, cut the engine loose, and let them go down the grade. ' Again he says: 'The grade was too steep for him to stop the cars. ' Further he says: 'I suppose it would have been of advantage to me if other brakemen had been there. ' 'Q. If there had been enough men you could have held her down so as not to hurt anybody? A. Yes, sir. As a matter of fact there was not enough men to hold her down easy. ' Other witnesses corroborate Gifford as to the manner of making the switch, the nature of the grade, the number of brakemen on the train at the time, the rapidity with which the 10 cars moved after being detached from the engine, the force with which the cars came together, and how such a result could have been prevented. The conductor in charge of this train knew the nature of that grade. It was his duty to know that one brakeman managing one brake could not control that train of 10 loaded cars. It was the duty of the conductor to take these 10 cars off that switch and attach them to the four on the main track in a prudent and careful manner, having due regard to the safety of the property of the company, and above all to the safety of the lives and persons of the employes of the company, many of whom from this evidence were known by every employe of that company on that train,-- from the conductor to the water-monkey,-- to be on the open gravel-cars, which, from the testimony in this case, was recognized as a position of danger; and with that knowledge such a switch was made. In the light of this evidence, can a want of care in changing these cars be imputed to the conductor? Did he exercise the care that was necessary under the circumstances? If he did not, as was said by the supreme court in the case of Railroad Co. v. Arms, 91 U.S. 495, he was guilty of gross...