Baltimore & Ohio & Chicago Railroad v. Leathers ( 1895 )

Lotz, J. —

The appellee was in the employ of the appellants as a brakeman, and was injured by falling from ■ the top of a car. He brought this suit to recover damages for the injury sustained.

In his complaint he averred that near the center of the train of freight cars on which he was engaged as a brakeman one of the defendant's cars had been by them negligently constructed and negligently provided with an unsafe and narrow running board, and that the brake wheel attached to said car was negligently constructed .and maintained, so that the brake wheel projected over the running board and made the passageway along said board narrow, unsafe and dangerous for the use of the plaintiff as such brakeman; that while the plaintiff was passing along the top of the cars to loosen the brakes, as he was required to do in the line of his duty, he came to the end of the car, where the running board, brake and brake-wheel had been negligently provided and constructed, and while attempting to pass upon said car, and along said running board, and while in the exercise of due and reasonable care on his part he fell from said running board and car; that his loss of foothold and fall was caused solely by and through the negligence of the defendants in failing to provide reasonably safe and suitable appliances and safe and suitable place for tbe plaintiff to perform his duties as such brakeman; that the plaintiff at no time had any notice of any defects nor of the narrow and defective running board, nor of the manner in which the running board, brake and brake wheel were constructed and adjusted; that the defendant, at all times, had notice of such defects.

There are other acts of negligence charged in the complaint, but as there was no evidence to support them it is unnecessary to set them out. If there be several acts of negligence charged, the proof of any one of them will support a recovery.

Counsel for appellants concede that the complaint is sufficient to withstand the demurrer. This disposes of the first assignment of error.

The overruling of appellants’ motion to make the complaint more specific and of the motion to strike out parts of the complaint are each assigned as error. Neither of these motions is properly brought into the record by the bill of exceptions. The bill of exceptions embodying them is not signed by the presiding judge. Had these motions been properly in the record there was no available or reversible error in overruling them.

The overruling of the motion for a new trial is also assigned as error. It is contended that the verdict is not supported by the evidence.

There was evidence which tended to prove, substantially, this state of facts, that the appellants were operating a railroad and that the appellee was in their employ as a freight brakeman; that on or about the 21st day of January, 1892, a freight train composed of a locomotive engine, tender, caboose and a number of freight cars, was standing on a railroad track in the yards owned by appellants at Chicago Junction, Ohio, ready to start on a west bound run to the town of Garrett, Indiana; that in order to keep the train stationery and prevent it from moving out of the yard on said track, it was necessary to set and keep set the brakes on the train, and that the brakes on the train had been set for that purpose; that it was necessary to unset the brakes, so that the train 'might proceed upon its west bound run; that the manner in which the brakes'were set and unset was by means of brake staffs extending above the top of the cars with a wheel on the top end and a ratchet wheel at either the lower end or near the top of the car; that in order to set or unset the brakes it was necessary for the brakeman to pass along the top of the cars, passing from one to the other; that near the center of the train was a freight car, so constructed that the running board on the top thereof was narrow and the brake-staff and wheel projected above the top of the car and near the center of the running board; that the appellee was employed as a brakeman on said train; that between the hours of 2 and 4 o’clock in the afternoon of said day the engineer made an effort to move the train on its course, but that owing to the fact that one or more of the brakes had not been unset the engineer gave a signal to the brakeman to find and unset the brake or brakes that prevented the train from being moved; that the appellee, who was in the caboose at the time the signal was given, ascended to the top of the cars and proceeded hurriedly along the running boards on the top thereof to find and unset the brakes which held the train; that in so doing his attention was directed to the ratchet wheels on the brake-staffs, that he might ascertain which one or ones were set; that in so doing he reached the car near the center of the train, with the narrow running board and with the brake-staff and wheel projecting above the car near the center of the board, and while passing thus hurriedly along he did not notice the position of the brake-staff and wheel on said car, and while in the act of jumping from the running board of another car to this one his foot struck the brake wheel and he was. thrown off his balance, and when he alighted on the narrow running board, slipped and fell to the ground and sustained injuries; that the appellee had no previous knowledge of the brake wheel or staff. The construction of the car, as to the width of the running board and the position of the brake wheel and staff, were open and apparent and could have been seen by any person whose attention was not directed elsewhere.

It is the duty of the master to provide his servants with reasonably safe places in which to work, and suitable and reasonably safe appliance with which to work. No point is made by the appellants that the evidence fails to show negligence on their part in failing to provide a safe place or appliances, but we may say in passing that the master is not bound to furnish the best and most approved machinery and appliances. Nor can the courts as a general rule determine what particular form or kind of machinery and appliances, or the manner of their construction, which the master must provide .for his servants. There may be cases in which the court may rule as a matter of law that certain appliances and the manner of their construction are reasonably safe or unsafe, and that the master is or is not negligent in providing them. But between these two extremes there is a large number of instances in which the negligence or want of negligence of the master in providing given appliances is a question for the jury. So in this case at the least it was a question for the jury to say whether or not the appellants were or were not guilty of negligence in providing the car with the brake staff and wheel projecting near the center of the running board.

It is next contended that the appellee assumed the risk, and for that reason he can not recover. The assumption of the risk, or contributory negligence as it is sometimes improperly called, like the question of negligence may in some instances be ruled as a matter of law, and it may sometimes be a question for the jury. The general rule is, that when the machinery and appliances are so placed and constructed that the danger is open and obvious the servant assumes the risk. He is bound to make use of his senses, and if he proceed to work when he knew or could have known of the danger by using his senses, he will be deemed to have accepted the risk. But there is a class of cases where the danger is obvious in which the assumption of the risk can not be ruled as a matter of law, but is a question for the jury. If a servant be surrounded by extraordinary circumstances not of his own making, or if his attention be diverted from the danger by great or more important duties to his master, it is a question for the jury to say whether or not he assumed the risk. In the case at bar it was the duty of the appellee to assist in moving the train. • It may have been necessary to move it quickly in order to get it out on scheduled time, and thus prevent pecuniary loss, to prevent delay and confusion in the operation of other trains, and the business of the company. It may have been necessary to get the train out of the way to prevent collision, loss of property and life. When an urgent call is made by the conductor, the brakeman can not always know the cause for it. Here there was an urgent call tó loosen the brakes. The appellee in the discharge of his duty hurriedly attempted to find the brake or brakes that were holding the train, and in so doing his attention was diverted from a danger which otherwise would have been apparent. Had he discovered the position of the brake wheel, and the manner in which the running board was constructed, and refused to encounter the risks, thus abandoning his post of duty, such abandonment would necessarily have resulted in delaying the operation of the train, confusion in conducting the business of the company and in a possible loss of life and property. The servant’s fidelity to duty, and his devotion to his master’s interest ought not be turned to his disadvantage, and used to shield or screen the master from liability unless the danger was so imminent as to subject him to the charge of recklessness in remaining at his post. It was proper for the jury to take into consideration all the exigencies of the occasion, and the things that operated most strongly on the appellee’s mind in determining whether or not he assumed the risk. It was here a question for the jury, and not one of law for the court.

In Kane v. Northern Cent. R. W. Co., 128 U. S. 91, 9 Sup. Court Rep. 16, the facts were that the plaintiff, a brakeman on defendant’s freight train, while making a trip on a cold, stormy night, discovered that a step was missing from one of the cars between his place of duty and the caboose, and at once notified the conductor, who promised to drop the car at a certain point if he found it did not contain perishable freight. Before reaching that point the train stopped at a station, and the plaintiff went back to the caboose as was his custom to warm himself and eat his breakfast. The train suddenly started, and the plaintiff hastily ran over the top of the cars to .resume his part as was his duty. When he reached the defective car he forgot about the missing step, and in attempting to let himself down fell, and was injured. The court held on this state of facts that the question of contributory negligence or the assumption of the risk was one for the jury, and not a question of law for the court.

In the course of the opinion the court, by Justice Hablan, said: “It can not be said that the plaintiff was guilty of contributory negligence in staying upon the train, in the capacity of brakeman, after observing that a step was missing from one of the cars over which he might pass while discharging his duties.

“An employe upon a railroad train, likely to meet other trains, owes it to the public, as well as to his employer, not to abandon his post unnecessarily. Besides the danger arising from the defective car was not so imminent as to subject him to the charge of recklessness in remaining at his post. * * * But it is said that the efficient, proximate cause of the injury to the plaintiff was his use of the defective appliances at the end of the car from which he fell, when he knew, and, at the moment of letting himself down from that car, should not have forgotten, as he said he did, that one of its steps was missing.

“It is undoubtedly the law that an employe is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, where such injuries substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided them if in his power to do so. * * * But in determining whether an employe has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.

“In the case before us, the jury may, not unreasonably, have inferred from the evidence, that while the plaintiff was passing along the tops of the cars for the purpose of reaching his post, he was so blinded or confused by the darkness, snow, and rain, or so affected by the severe cold, that he failed to observe, in time to protect himself, that the car from which he attempted to let himself down was the identical one which, during the previous part of the night, he had discovered to be without its full complement of steps. While a proper regard for his own personal safety, and his duty to his employer, required that he should bear in mind, while passing over the cars to his station, that one of them was defective in its appointments, it was also his duty to reach his post at the earliest practicable moment, for not only might the safety of the moving train have depended upon the brakemen being at their posts, but the engineer was entitled to know, as the train moved off, by signals from the brakesman, if necessary, that none of the cars constituting the train had become detached.”

So, in the case at bar, it was the duty of the jury to take into consideration all the exigencies of the occasion, the hurry under which the appellee acted and the fact that his attention was diverted to the ratchet wheels in determining whether or not he assumed the risk. There was evidence which tended to show that the appellee was not guilty of contributory negligence, or that he did not assume the risk. Pennsylvania Co. v. Sears, 136 Ind. 460.

It is further insisted that the evidence shows that the car from which the appellee fell was a passenger car and that the appellants owed appellee no duty of inspection as to the manner of its construction. But there was some evidence which tended to show that the car from which appellee fell was a car owned by appellants. It is lastly contended that there was no evidence whatever to show that one of the appellants, the Baltimore and Ohio and Chicago Railroad Company, had anything to do with operating the train or the railroad. But there was some-evidence which tended to show that it operated tlie train and road jointly with the other appellant and the jury in answer to interrogatories so found.

Filed May 28, 1895.

We find no reversible error in the record.

Judgment affirmed.

Gavin, J., concurs in the result.