Accident Ins. Co. v. Crandal, 120
U. S. 524, affirmed to the point that the refusal of the
court to instruct the jury at the close of the plaintiff's evidence
that he is not entitled to recover cannot be assigned for error if
the defendant afterwards introduces evidence.
Under all the circumstances set forth in the statement of facts
and the opinion of the court, it was for the jury to determine
whether the failure on the part of the plaintiff to work with his
fellow servant was in fact contributory negligence on his part, and
on the whole case it appears that the cause was submitted by the
court to the jury fairly, and with an accurate statement of the law
applicable to the relation between the parties.
This is an action at law brought by the defendant in error,
Richard Mares, against the Northern Pacific Railroad Company in the
District Court of the Third Judicial District of the Territory of
Dakota, to recover damages for personal injuries alleged to have
been received by the plaintiff while in the employ of the defendant
by reason of its alleged negligence.
The complaint alleges that on October 31, 1881, the plaintiff
was in the employ of the defendant as a brakeman on duty as such in
the yard at the City of Fargo, used for the purpose of switching
cars to make up trains, in which service a switch engine was used;
that at the time of the injury, the engineer of the switch engine
was one Bassett, who, it is alleged, was a man of hasty and
excitable disposition and ungoverned, violent, and hasty
temper,
"and was and had
Page 123 U. S. 711
for a long time been, while in the employ of this defendant as
engineer, accustomed to become unduly and dangerously excited and
angry, and while under the influence of anger or excitement, and
while in the performance of his duty as engineer, was and had been
accustomed to act the conduct himself as engineer in a most
reckless manner, causing great danger and peril to his fellow
servants, and especially to the brakemen on the train or cars
attached to or moved by the engine on which he was engineer,"
and that in consequence thereof
"the said engineer was at the time of the injury hereinafter
referred to, and for a long time prior thereto had been, negligent,
unskillful, unfit, and incompetent to act as engineer of said
switch engine, or of any engine or locomotive, of which facts the
defendant had notice and knowledge and by the use of ordinary
diligence defendant would have discovered and learned that he was a
negligent and an unfit, unskillful, and unsafe engineer. And this
plaintiff had not notice or knowledge prior to the injury to him
hereinafter referred to that the said engineer was for any reason
or on any account and unfit or unsafe person to act as
engineer."
It is further alleged that at the time of the injury, the
plaintiff
"was required, in the performance of his duties as switch
brakeman, to set or fasten or to loosen the brakes of the cars
which were being switched or moved in the said yard, and he was at
the time and place aforesaid required to perform the said duty on
the cars of the defendant, which were being switched and moved by
the engine in which the said Bassett was engineer, and in the
moving of cars it was his duty as brakeman to give signals to the
said engineer, and of the said engineer to obey such signals; that
at the time and place aforesaid, and while this plaintiff in the
performance of his duties as brakeman as aforesaid, was upon the
top of the freight car (part of a train) being removed in the said
yard by the engine in which the said Bassett was engineer, and
while the said Bassett had control of and was managing said engine,
this plaintiff, as it was his duty to do, gave the said engineer a
signal to move and 'back' the cars attached to the said switch
engine the length of a certain number of cars
Page 123 U. S. 712
indicated by the signal. And the plaintiff, as he was in duty
required to be, was standing on the top of the rear car so being
moved backward, and before said cars had been moved backward the
distance which they were intended to be removed and the distance
which the signal, given by this plaintiff, required them to be
removed, the said engineer unskillfully, negligently, recklessly,
and suddenly, and contrary to his duty, stopped and reversed the
said switch engine and the cars attached thereto, and thereby threw
the plaintiff off the rear car where he was standing and where it
was his duty to stand, to the ground, and thereupon the said
engineer suddenly, negligently, recklessly, and violently and
unskillfully, then and there, and before the plaintiff had time to
or could move out of the reach of the cars or off the track, moved
and pushed the said engine and cars backward upon said track and
onto and over the plaintiff, and thereby greatly injured the
plaintiff, and crushed and broke both of his legs, so that it then
and there became and was necessary to amputate them, and they were
then and there, on account of said injuries, amputated,"
etc.
The answer of the defendant alleged
"that the said fall of the plaintiff and his said injuries
resulting therefrom were solely caused either by the negligence of
the plaintiff himself or by that of some one or more of the other
employees of the defendant engaged at work together with the
plaintiff in the defendant's said yard at the time of the happening
of the said injuries, and not by any negligence or fault on the
part of the defendant."
The cause was tried by a jury, and resulted in a verdict and
judgment for the plaintiff of $20,000, and costs. An appeal was
taken from the district court to the supreme court of the
territory, where it was heard upon a record containing a statement
on motion for a new trial, which it was stipulated might be treated
as a bill of exceptions. It embodies all the evidence upon the
trial, with the rulings of the court during its progress, and the
charge of the court to the jury, with all the exceptions thereto
noted. The judgment of the district court was affirmed. From that
judgment the present writ of error is prosecuted.
Page 123 U. S. 713
MR. JUSTICE MATTHEWS, after stating the facts as above,
delivered the opinion of the Court.
It appears from the bill of exceptions that at the conclusion of
the plaintiff's case, counsel for the defendant moved for a
nonsuit, which the court denied, and an exception was taken, which
is still insisted on here. The defendant's counsel, however,
offered evidence in support of the defense, and thereby waived this
exception.
Accident Ins. Co. v. Crandal, 120 U.
S. 527. When all the evidence had been submitted on both
sides, the defendant by its counsel demurred to the evidence and
moved the court to dismiss the action, which the court refused to
do, and thereupon the defendant requested the court to direct the
jury to find a verdict for the defendant, which request was
refused, and an exception taken. The question raised by these
rulings, and the exceptions thereto, is whether there was
sufficient evidence to justify the court in submitting the cause to
the jury.
There was certainly evidence tending to establish the following
state of facts: that Bassett had been in the employ of the
defendant as engineer in that yard before plaintiff was injured
about a year; that during that time he had by his conduct
frequently shown his negligence, recklessness, and unfitness for
the place; that complaints had at different times been made of his
negligent and reckless conduct to the defendant's representatives
at Fargo; that notwithstanding such complaints, he was retained in
the same service, except during short intervals when he had been
discharged two or three times for misconduct; that the plaintiff at
the time of the injury had only been in the employ of the defendant
about two weeks, and only about one week of that time with Bassett;
that he worked as night brakeman; that on the night of the injury,
and about fifteen or twenty minutes before the accident, the
yardmaster called up the switching crew, who had been asleep for a
short time, and ordered plaintiff to direct
Page 123 U. S. 714
Bassett to move his engine so as to commence switching cars at
the point named; that they were in haste to get ready for a train
soon to come in from the east; that the plaintiff, as directed by
the yardmaster, urged Bassett to move promptly, on account of which
angry words passed between them; that thereafter, while under the
direction of the yardmaster, they were backing some cars, and while
he was standing on top of and near the rear end of the head car,
which was furthest from the engine, the plaintiff gave a signal to
the engineer to back seven or eight car lengths; that it was the
duty of the plaintiff to give such signals, and of the engineer to
obey them, and to continue backing until he was signaled to stop;
that when he had backed about three car lengths he, without any
warning to the plaintiff, and without any reason or necessity
therefor, very suddenly, recklessly, and negligently reversed his
engine without shutting off the steam, giving the train so sudden
and violent a jerk as to throw the plaintiff off and inflict the
injuries complained of. Clearly, this made a case for the plaintiff
unless overthrown by a successful defense.
It is claimed, however, by counsel for the defendant below that
there was evidence showing that the plaintiff was guilty of
contributory negligence in two particulars -- first that he had
knowledge of Bassett's incompetence, and ought, on that account, to
have refused to serve with him, and secondly that he was standing
too near the rear of the car without sufficiently guarding himself
by holding on or bracing himself against the effect of sudden
changes of motion which were to be expected in the business of
switching. But whether or not the plaintiff was in such fault as
materially contributed to the injury in these particulars depended
upon a consideration of all the circumstances of the case, and
there was evidence sufficient to justify the jury in concluding, as
they did, that the plaintiff was not guilty of negligence in these
particulars.
At the request of the defendant, the court gave to the jury the
following instructions:
"In order to recover in this suit, the plaintiff must have
established the following propositions, to-wit: 1. that the
Page 123 U. S. 715
plaintiff was hurt through the negligence or improper conduct of
Arthur D. Bassett; 2. that the defendant neglected to use ordinary
care in the selection of Bassett as the employ for running the
switch engine mentioned in the evidence; 3. that the plaintiff was
free from negligence on his part which contributed to the
injury."
"If the jury believe that the plaintiff failed to use due care
under all the circumstances in conducting himself while standing on
top of the car referred to in the evidence, and that such want of
care on his part contributed to produce his fall from the car, then
the jury must find for the defendant."
"If the jury believe that the plaintiff failed to use due care
under all the circumstances in conducting himself while standing on
the car referred to in the evidence, and that such want of care on
his part contributed to produce his fall from the car, in such case
the jury must find for the defendant although it is of the opinion
that Bassett was an unfit person to run the engine in question and
was guilty of actual negligence in running it on this
occasion."
"In order to charge the defendant in this suit on the ground of
Bassett's having been an unfit man to run the engine in question,
the unfitness must have been of a nature tending to make working
with him and his engine unusually perilous."
The court also, among other things not excepted to, instructed
the jury as follows:
"The employer is not liable for damages sustained by one
employee caused by the negligence of another employee engaged in
the same general business unless the employer is guilty of
negligence from which the injury resulted, and it is held that he
who engages in the employment of another for the performance of
specific duties and services for compensation takes upon himself
the natural and ordinary risks and perils incident to the
performance of such services, and in legal contemplation the
compensation is adjusted accordingly. These are perils which the
servant is likely to know, and against which he can as effectually
guard as the employer; they are perils incident to the services,
and which can be as distinctly foreseen and provided for in the
rate of compensation as any other. "
Page 123 U. S. 716
Also:
"The duties and liabilities of employer and employee to each
other are defined by the code or statute of this territory, which
must control this case, as follows:"
" An employer is not bound to indemnify his employee for losses
suffered by the latter in consequence of the ordinary risks of the
business in which he is employed, or in consequence of the
negligence of another person employed by the same employer in the
same general business, unless he has neglected to use ordinary care
in the selection of the culpable employee."
And:
"But gentlemen, if you find from the evidence that the defendant
company was guilty of negligence in not providing a safe and fit
man to run that engine, in consequence of which you also find the
accident occurred, still, if the plaintiff failed to exercise that
prudence, care, and caution which a prudent man, under similar
circumstances, ordinarily would exercise, which contributed to the
injury, he is not entitled to recover."
The court also instructed the jury as follows:
"It is also true that if the plaintiff had full knowledge of the
reckless and careless habits of the engineer Bassett, as complained
of by him, or had reason to know of such recklessness and
carelessness, he should either have quit the service or reported
the facts to the officers of the company having the power to
discharge him, and a failure to do so might be negligence on his
part; but gentlemen, it is for you to say, from all the attending
circumstances, whether he was neglectful in that regard."
"While this rule of law above stated is generally true, a
reasonable view must be taken in its application here. The evidence
tends to show that this plaintiff had been at work in this yard but
a short time, and only a part of that time with or under this
engineer, Bassett. Now had he such knowledge or had he such an
opportunity to know of the careless and reckless habits of Bassett
that rendered it dangerous for him to work with him, and made it
his duty to have refused to continue in such service, or have
reported him to the officers of the company? "
Page 123 U. S. 717
And also:
"The plaintiff must establish every material fact by a
preponderance of evidence, and the defendant having alleged
negligence on the part of the plaintiff, denominated 'contributory
negligence,' it must be established by a preponderance of evidence
to warrant you in finding it, and upon this question you must
decide."
The defendant requested the court to give the jury the following
instruction:
"If the plaintiff knew or had the opportunity of knowing before
his fall from the car in question that Bassett was an unfit or
unsafe man to run the engine in question, in that case it was the
plaintiff's duty to refuse to work with him any longer, and his
failure to do so would prevent him from recovering in this
suit."
Which request to give said instruction the court refused, to
which ruling the defendant duly excepted.
The defendant, by its counsel, thereupon requested the court to
give to the jury the following instruction:
"The evidence adduced on behalf of the plaintiff tended to show
that Bassett was guilty of negligence in running his engine during
the same night on which the plaintiff was hurt, previous to the
accident, and while the plaintiff was working with him. If the jury
believe such to have been the fact, it must find for the
defendant."
Which request to give said instruction the court refused, to
which ruling the defendant by its counsel duly excepted.
At the plaintiff's request, the court gave the jury the
following instructions:
"This plaintiff, when he voluntarily entered into the employ of
the defendant, took the risk of dangers ordinarily attending or
incident to the business in which he was employed, including the
perils arising from carelessness of his fellow servants."
To which the defendant, by its counsel, duly excepted.
The court thereupon at the request of the plaintiff's counsel,
instructed the jury as follows:
"But the above rule is subject to the following limitation
Page 123 U. S. 718
or exception,
viz: that the master or employer, whether
a natural person or a corporate body, is legally bound to use due
care not to expose the servant, when conducting the master's
business, to perils or hazards against which he may be guarded by
proper diligence upon the part of the master."
To this the defendant by its counsel duly excepted.
The court thereupon at the request of the plaintiff's counsel,
instructed the jury as follows:
"That in this case, while the defendant did not guaranty to its
servants or to this plaintiff that the engineer on the switch
engine in its yard at Fargo should be careful or skillful or
competent, yet it was bound to exercise proper care to get a person
in all respects fit for the place, and if, after defendant had
employed such engineer, it learned or had reason to believe that he
was careless, reckless, or incompetent, it was its duty to
discharge him."
To this the defendant duly excepted.
The court thereupon, at the request of the plaintiff's counsel,
instructed the jury as follows:
"That if the defendant was careless either in employing or
retaining in its service a reckless, incompetent, or careless
engineer on said engine, and on account of the recklessness,
incompetence, or carelessness of such engineer the plaintiff was
injured without fault or negligence on his part, then, in such
case, the railroad company is liable to him for the damage
resulting from such injury."
To this the defendant duly excepted.
The court thereupon, at the request of the plaintiff's counsel,
instructed the jury as follows:
"That sound sense and public policy require that railroad
companies should not be exempt from liability to their employees
for injuries resulting from the incompetency, negligence, or
carelessness of co-employees when, by the exercise of proper
diligence, such injuries might be avoided."
To which the defendant, by its counsel, duly excepted.
The court thereupon, at the request of the plaintiff's counsel,
instructed the jury as follows:
"That the plaintiff had a right to suppose and assume that
Page 123 U. S. 719
the railroad company had used proper diligence and care in the
employment and retention of an engineer."
The court thereupon, at the request of plaintiff's counsel,
instructed the jury as follows:
"That what will amount to proper care and diligence in the
selection of a servant for a particular duty, or in the retention
of such servant, will in part depend on the character and
responsibility of that duty which said servant is to perform. The
greater the danger from the negligence, incompetence, or
carelessness, the greater the care should be in his selection or
retention -- for instance, the same degree of diligence or care
which is required in the employment of a locomotive engineer would
not be required in the employment of a fireman."
To this the defendant duly excepted.
The court thereupon, at the request of plaintiff's counsel,
instructed the jury as follows:
"If Bassett, the engineer in the yard at Fargo, was careless,
reckless, or incompetent, and if such carelessness, incompetency,
or recklessness caused the injury to the plaintiff, then if the
agents or servants of this defendant, whose duty it was at that
time to employ and discharge him if unfit, did not exercise due
care in the employment of Bassett, or if, after he was employed,
they in fact knew that he was careless, reckless, or incompetent,
or if, by the exercise of due care, they would have discovered that
he was careless, reckless, or incompetent, then the railroad
company is liable to the plaintiff for any injury he may have
suffered from such carelessness, recklessness, or incompetency of
Bassett if the plaintiff himself was not guilty of any negligence
which contributed to that injury."
To this the defendant duly excepted.
The court thereupon at the request of plaintiff's counsel,
instructed the jury as follows:
"Ordinary care or due care in such cases is not merely such care
as other railroad companies exercise under like circumstances, for
other railroad companies may be careless. Ordinary care in the
selection or retention of servants in such cases implies that
degree of diligence and precaution which
Page 123 U. S. 720
the exigencies of the particular service reasonably require --
that is, such care as, in view of the consequences that may result
from negligence on the part of employees, is fairly commensurate
with the perils or dangers likely to be encountered."
To this the defendant by its counsel duly excepted. The court
thereupon, at the request of plaintiff's counsel, instructed the
jury as follows:
"The jury have not legally a right to find that the plaintiff,
Mares, was guilty of negligence which contributed to his injury
unless the jury finds that that fact is shown by a preponderance of
evidence."
And to this the defendant duly excepted.
We think the court was clearly right in refusing to give the
peremptory instructions asked for by the defendant that if the
plaintiff knew or even had the opportunity of knowing before his
fall from the car in question that Bassett was an unfit or unsafe
man to run the engine in question, it was the plaintiff's duty
absolutely to refuse to work with him any longer, and that his
failure to do so would prevent him from recovering in this suit.
The duty of the plaintiff under such circumstances is not to be
determined by the single fact of his knowledge of the danger he
incurred by continuing to serve with a co-employee known by him to
be an unfit and incompetent person. It was enough for the court to
say, as it did, that a failure on the part of the plaintiff to
refuse to work in view of that knowledge on his part might be
negligence on his part. The qualification was correct that it was
for the jury to say from all the attending circumstances whether
his failure to do so was in fact contributory negligence. A
suitable judgment on that question can only be reached by carefully
weighing the probable consequences of both courses of conduct, and
it might well happen that even at the risk of injury to himself
occasioned by the unskillfulness of his co-employee, the plaintiff
might still reasonably be regarded as under a duty not suddenly and
instantly to refuse to continue in the conduct of the business of
his principal. Many cases might be conceived in which the latter
course might even increase the danger to the plaintiff himself and
entail great injury and loss to others.
Page 123 U. S. 721
Counsel for the plaintiff in error criticizes the language of
the court in its instruction to the jury, given at the request of
the plaintiff's counsel,
"that the plaintiff had a right to suppose and assume that the
railroad company had used proper diligence and care in the
employment and retention of an engineer,"
on the ground of vagueness and want of distinctness as to what
diligence and care, under the circumstances, would be proper; but
no explanation of the charge was asked for by the counsel for the
defendant, nor was any exception taken to the instruction as
given.
Objection is also taken to that portion of the charge which
says:
"And the defendant, having alleged negligence on the part of the
plaintiff, denominated 'contributory negligence,' it must be
established by preponderance of evidence to warrant you in finding
it."
The objection, as we understand it, is that it was calculated to
mislead the jury by not only putting the burden of proof of the
fact on the defendant, but also in assuming that they must look for
that proof only to the testimony adduced by the defendant. We do
not, however, think it possible that any jury could be misled in
that way. The whole effect of the charge is that the fact in
question must be established, from the whole testimony, by a
preponderance of evidence in its favor. Where the burden of proof
rested was immaterial at that stage of the cause, when all the
evidence was in, and the jury certainly could not suppose that they
were confined, in their examination of that question, to the
testimony adduced only on the part of the defendant.
On the whole case, it abundantly and satisfactorily appears that
the cause was submitted to the jury upon the charge of the court
fairly, and with an accurate statement of the law applicable to the
relation between the parties. We find no error in the record; the
judgment is accordingly
Affirmed.