Union Pac. Ry. Co. v. James

• Decision Date: 26 June 1893
• Docket Number: 223.
• Citation: 56 F. 1001
• Parties: UNION PAC. RY. CO. v. JAMES.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 1001

UNION PAC. RY. CO. v. JAMES.

No. 223.

United States Court of Appeals, Eighth Circuit.

June 26, 1893

John M Thurston and John N. Baldwin, for plaintiff in error.

Francis A. Brogan, (Harle & McCabe, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge.

The defendant in error, while in the employ of the Union Pacific Railway Company as a brakeman, sustained an injury to his left foot and leg which necessitated amputation, in consequence of which injury he brought an action against the railway company in the circuit court for the southern district of Iowa, and recovered a verdict in the sum of $7,500. The material allegations contained in his petition or complaint were as follows: That in the discharge of his duty as a brakeman on one of the defendant's freight trains he was required to assist in switching some freight cars from the main track to a side track, at a station called 'North Bend,' in the state of Nebraska; that in the discharge of such duty it became necessary to go between two cars, for the purpose of coupling them; that at the place where the coupling had to be done, at the junction of the main and side tracks, there was an angle or frog formed by the rails, which, without being blocked was extremely dangerous, and liable to cause injury to any one who happened to step therein; that at the time the coupling was attempted, it was so dark that it was impossible to see whether the frog was blocked; that at the time the plaintiff entered into the defendant company's service he was informed by its roadmaster that all of the frogs and angles along the defendant's road were properly filled and blocked; that in point of fact the angle or frog where the coupling was done was not at the time of the accident, and had not been, blocked or filled, and for want of such blocking was in a very dangerous condition; that in consequence thereof, as plaintiff was attempting to couple said cars, his foot became fastened in the angle or frog, so that he could not extricate it, and that by the movement of the train his left foot and leg were mangled and crushed.

The defendant company filed an answer, wherein it admitted that the plaintiff was in its employ as a brakeman, but it denied all of the other allegations of the complaint. It furthermore pleaded that at and prior to the accident plaintiff had acquired full knowledge of the condition of all of the frogs and switches at North Bend, where the accident happened, and with such knowledge remained in the defendant's service, and thereby waived his right to claim compensation in consequence of injuries sustained by reason of any alleged defects in the frogs and switches at that station.

The controversy before the jury appears to have turned mainly on the question whether the frog complained of was blocked at the time of the accident, and whether the want of blocking, as charged in the complaint, caused the injury. The plaintiff produced several witnesses, who testified, in substance, that they examined the frog the morning after the accident occurred, and found that it was not blocked or filled. On the other hand, the defendant produced a greater number of witnesses, who testified, in substance, that they examined the frog, either on the morning succeeding the accident, or a day or two thereafter, and that they found the frog properly blocked and filled.

At the conclusion of all of the evidence, the defendant asked the court to give two instructions, and its refusal to give such requests is assigned for error. The first of these requests, omitting immaterial portions thereof, was as follows:

'In order to entitle the plaintiff to recover, it is not only necessary that he should prove that the frog in question was not blocked, but also that the company had knowledge or notice of the fact, or that the company, by the exercise of ordinary care and diligence, could have known that the frog in question was not blocked. There is no proof whatever in this case proving, or tending to prove, that the company had any notice or knowledge whatever that the frog in question was not blocked. On the contrary, the evidence of the plaintiff tends to show that the frog in question was blocked, but it is claimed that the blocking was insufficient, and had been permitted to become worn. There is no claim whatever in this case of negligence upon the part of the company in having the frog blocked, and permitting the same to become worn or out of repair. This action is predicated upon the fact that the frog had never been blocked. This being the real status of the case, and there being an entire failure of proof that defendant had any knowledge or notice of such, as is required by law, as to the fact that this frog was not blocked, the plaintiff cannot recover, and you are instructed to return a verdict for the defendant.'

The second instruction, above referred to, was, in substance, a direction to the jury to find for the defendant company, on the ground that the testimony tending to show that the frog was not blocked at the time of the accident was so completely overcome and overborne by the defendant's testimony to the contrary as to justify the court in determining that issue of fact, and in withdrawing it from the consideration of the jury.

It is hardly necessary to observe that the second of these instructions was properly refused. There was testimony of a positive and direct character that there was no blocking in the frog on the night of the accident, and there was much evidence to the contrary. If the trial court had withdrawn that issue from the jury, on the theory outlined in the instruction, or on any other theory, it would have invaded the province of the jury, and its action would have been clearly indefensible.

We are also of the opinion that the first instruction, above quoted was properly refused. The concluding paragraph of the instruction, which we have placed in italics, correctly states that under the pleadings in the case the plaintiff below predicated his right to recover on the ground that the frog had never been blocked. He complained of an original faulty construction of the frog, to wit, the failure of the company to insert a block of wood or other material in the...