Union Pac Ry Co v. James
| Citation | 41 L.Ed. 236,163 U.S. 485,16 S.Ct. 1109 |
| Decision Date | 25 May 1896 |
| Docket Number | No. 270,270 |
| Parties | UNION PAC. RY. CO. v. JAMES |
| Court | United States Supreme Court |
On April 12, 1890, defendant in error filed his petition in the district court of Pottawattamie county, Iowa, to recover of plaintiff in error $20,000 for personal injuries. From the petition it appears that he was a brakeman in the employ of the railway company; that the injury occurred at the town of North Bend, in the state of Nebraska; and that it was caused by reason of his catching his foot in the narrow angle or frog made by the junction of the main and side tracks at that place, from which frog he was unable to extricate himself until an engine had passed over him. It was alleged that the blocking of such frog is the proper duty of every railway company, upon the performance of which every employ e has a right to rely; and, further, 'that, in fact, said angle or frog was not then, and had not been, blocked or filled, but was in a very dangerous and hazardous condition by reason of not being blocked or filled, all of which the said defendant then and there knew, but of which said plaintiff had no knowledge whatever.'
The defendant answered with a general denial, and by amendment that the plaintiff was entirely familiar with the condition of the tracks at North Bend, and by virtue of such knowledge waived the right to take advantage of any alleged defect in their condition. The case was removed, on application of the railway company, to the circuit court of the United States for the Southern district of Iowa. Trial being had, it resulted in a verdict and judgment for the plaintiff, which was affirmed by the court of appeals of the Eighth circuit (6 C. C. A. 217, 56 Fed. 1001), to reverse which judgment the railway company sued out this writ of error.
John M. Thurston, for plaintiff in error.
Francis A. Brogan, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
The issues in this case were made up by the charge in the petition that the frog was not and had not been blocked, which charge was denied, and which denial was supplemented by the further allegation, on the part of the railway company, that the plaintiff knew the condition of the tracks, and continued in defendant's employ with full knowledge of the same, waiving thereby the right to complain of any supposed defect.
The testimony of plaintiff was that, at the time of the accident, about 1 o'clock in the morning, the frog was unblocked. In addition he called five witnesses, who testified that on the next morning they examined the track, and that there was no blocking in the frog, or, as one of them said, 'the same as no blocking at all.' On the other hand, the defendant introduced the testimony of seven witnesses, who examined the track either the next morning, or soon thereafter, and each of whom found the frog properly blocked,—one of them, the section foreman, testifying that, before the accident, he had himself put the blocking in.
Obviously, the uestion which the parties submitted to the jury was that of the existence or nonexistence of a block in the frog at the time of the accident. It is contended by the railway company that the court erred in failing to give a peremptory instruction to find a verdict for the defendant. The only witness who testified to the condition of the frog at the time of the accident was the plaintiff, and he testified that it was an unblocked frog; and while the section foreman testified that it was blocked before, and that he found it, the Sunday after, in the same condition that he had originally placed it, and while there was testimony of several witnesses that, immediately after the accident, the frog was found to be properly blocked, yet there was also equally satisfactory testimony to the contrary. As this latter testimony obviously contradicts that of the section foreman as to the condition of the frog after the accident, it tends to impeach it as to placing blocking in the frog prior thereto. At any rate, in view of the plaintiff's personal testimony, there was certainly a...
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