Smith v. Memphis & L.R.R. Co.

• Decision Date: 03 July 1883
• Citation: 18 F. 304
• Parties: SMITH v. MEMPHIS & L.R.R. CO.
• Court: U.S. District Court — Western District of Tennessee

18 F. 304

SMITH v. MEMPHIS & L.R.R. CO.

United States Circuit Court, W.D. Tennessee.

July 3, 1883

The mere happening of an accident is not prima facie evidence of the negligence of the employer; but where the cause of the accident is known to be some particular defect in the tools machinery, or other appliances, the existence of the defect is of itself evidence of negligence for which liability attaches, unless the employer can satisfactorily explain by proof that he has not been negligent in the matter of providing against the defect.

The plaintiff, being a switchman employed by the defendant, was ordered by the yard-master to go with the switch locomotive to the transfer-boat and bring away the passengers, the engineer being present and the order given to both, or in the presence of both, there being conflict in the proof as to whether the switchman or the engineer was to be considered as in charge of the expedition. There was no conductor. A flat car was attached to the locomotive used in place of a tender. Defendant's witnesses proved that the plaintiff's proper place was on this car, as there was printed in the cab of the engine this notice: 'No person allowed to ride on this engine except the engineer and fireman. ' The plaintiff's witnesses proved that he had never seen this notice, and that he often rode with the yard-master and other employes about the yard on this engine and had never been forbidden; that his duty frequently required him to ride on steps around the engine provided for the purpose. On the way to the boat the locomotive ran off the track, and the plaintiff, who was riding in the cab, was severely injured by his foot being crushed, losing two of his toes, and several bones from the instep, so that he was badly and permanently crippled.

The proof imputed negligence to the defendant in not having a sufficiently safe road-bed and track, and in excessive speed of the locomotive. The defects of track sought to be proven were an uneven bed, not ballasted, and which, at the place of the accident was allowed to become wet and 'sobby' from drainage from adjacent lots, and a rough track of old and worn rails that were imperfectly jointed with worn and unsafe 'chairs;' the rail at this particular place being much laminated, split, and broken, though the proof was conflicting as to whether the break was caused by this locomotive running off, or previously existed.

The plaintiff's witnesses thought the speed at which the engine was running was excessive for a 'pony' engine and that this excessive speed contributed to the accident. They estimated the speed at from 15 to 20 miles per hour. The defendant's witnesses, including the engineer, proved that the speed was not excessive, and not more than 12 or 14 miles per hour, and that the locomotive could be safely, and was frequently, run at that or a greater rate of speed. The defendant proved, and the plaintiff conceded, that the locomotive was especially constructed for a switch-engine, and could be safely run at the speed indicated by the proof, and that the engineer had been long employed in this capacity, was sober, discreet, and efficient, and selected with especial care for this particular work about the yards and transfer-boat, and that he was not drinking on this occasion.

The yard-master testified that he had received orders from the city authorities not to run at greater speed than six miles per hour, and had so instructed the engineer, but that their business required and they frequently ran at greater speed.

The plaintiff was asked in cross-examination if they were not very hilarious on the way to the transfer-boat, and replied: No; only that when he got on the cab, after the yard-master had told them to hurry up, the engineer said to him he was going to make his hair stand on his head, and that he replied to the engineer, he could not do it; and when further asked why, if he thought they were going too fast, he did not expostulate and order the engineer to reduce the speed, he replied that it was none of his business to do so, as he had no control of the locomotive or the engineer. The engineer and yard-master testified that the engineer was under the control of the plaintiff, and the engineer that he obeyed his orders. The cross-examination by plaintiff tended to prove that this was based on the obedience of the engineer to the switchman while throwing switches and coupling and uncoupling cars, and that plaintiff had no other control than that of giving signals while thus engaged, and that on this expedition he had no other duty than to handle the switches, and couple or uncouple the cars they were to bring off the boat.

The defendant proved that the track belonged to another company, the Louisville & Nashville, and was used by the defendant, as well as by other railroads, under a contract which bound the Louisville & Nashville Company to keep it in proper repair at the joint expense of the companies using it.

Wright, Folkes & Wright, for plaintiff.

B. C. Brown and Weatherford & Estes, for defendant.

HAMMOND, J., (charging jury.)

Every man who engages in a hazardous employment takes all the ordinary risk of injury from those inevitable casualties incident to the business he engages to do, including the carelessness of his fellow-employes who work with him, if they have been selected by the common employer with due care as to their skill and capacity to do the work required of them. The master, as the law calls the employer, is under an obligation to furnish for the work of the servant safe tools or appliances with which the work is to be done, including capable fellow-servants, and if any injury results from a neglect in this respect, he is liable to the servant for the injury. There is no difficulty about this general proposition, but nearly always great difficulty in applying it, and the so-called exceptions to the rule are rather the difficulties of application than exceptions to it, and in almost all instances will be found to be merely the correction of attempted misapplication.

Was the accident by which the plaintiff was injured one of those casualties for which the master is not to blame, and a misfortune resulting from the ordinary hazards of the plaintiff's employment? If so, then the defendant company cannot be liable. The solution of this question depends on your conclusions of fact from the proof as to the cause of the derailment of the engine.

It is conceded by the plaintiff there was no proof of any negligence in the selection or retention of Davis, the engineer, and no proof of a defective engine, and these allegations of the declaration may be dismissed from our consideration.

The negligence imputed to the company is a failure to supply and maintain a sufficient track, and the carelessness of the engineer. It will be convenient to consider separately these imputations of negligence, as the rules of law will depend largely upon the view you take of the facts. The natural order of your inquiry will be, first, what caused this accident?

First as to the track. It was clearly the duty of the railroad company to furnish a reasonably safe track. It was not, I think, compelled to furnish the best style of track known to the art of railroad building, but only such as was reasonably safe for the particular uses of this track in the yards of the company for the purpose of transferring cars from the river to the depots in the city. It was the duty of the company to furnish a track that was safe for that business, having regard to the uses of it, the rate of speed, etc., at which the company desired to, or were capable of using it, and they were bound to maintain the track in a safe condition. If you find, therefore, that the track was not safe for the purposes that this plaintiff was required to use it, and this condition of the track caused the accident, the defendant is liable, unless the plaintiff contributed to his own injury, as to which further instructions will be given you. And if you find that Davis, the engineer, ran the engine at too great a rate of speed, and thereby contributed to the defective track as a cause of accident, the company is still liable, unless again the plaintiff shared in or contributed to the high speed by directing it or failing to control it, if he had the power, because, if the track was defective, the company cannot excuse its negligence in that matter by the fact that the carelessness of a fellow-servant jointly caused the accident. It is only where the carelessness of a fellow-servant is the sole cause of the injury, and there is no neglect of the...