In this case, which was an action against a railroad company by
one of its employees to recover damages for a personal injury, it
was
held that it was proper for the Circuit Court to
direct the jury to find a verdict for the defendant.
The plaintiff was a laborer or construction hand under a
construction boss or foreman of the defendant. He was injured by
the fall of a steel rail which he and other laborers were trying to
load from the ground upon a flatcar, and which struck the side of
the car and fell back. The negligence alleged was that the foreman
moved out the construction train to which the flatcar belonged in
the face of an approaching regular freight train, to avoid which
the laborers were hurrying to load the rails, and that he failed to
give the customary word of command to lift the rail in concert,
but, with the approaching freight train in sight, and with oaths
and imprecations, ordered the men to get the rail on in any way
they could, and they lifted it without concert.
Held that
whatever negligence there was was that of either the plaintiff
himself or of his fellow servants who with him had hold of the
rail.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
James Coyne brought an action in the Circuit Court of the United
States for the District of Colorado, against the union Pacific
Railway Company to recover damages for a personal injury. After
issue joined, the case was tried by a jury. The court instructed
the jury to find the issues for the defendant, to which instruction
the plaintiff excepted. The jury rendered a verdict for the
defendant, and the plaintiff has brought a writ of error.
Page 133 U. S. 371
The bill of exceptions sets forth that the plaintiff gave
evidence tending to show the following facts: on and before the
18th of May, 1882, the plaintiff was in the employ of the defendant
as a laborer or construction hand under one McCormick, construction
boss or foreman of the defendant. McCormick had authority to
control and direct and compel obedience of the plaintiff, and also,
in his discretion, to discharge the plaintiff or any other servant
of the defendant working under his direction and control. While
employed by the orders of McCormick, the plaintiff, with the other
servants and sectionmen of the defendant, went upon its
construction train, which was under the control and direction of
McCormick, to a place between two stations on its railroad known,
respectively, as "Byers" and "River Bend," about two miles east
from Byers station, and at such place the plaintiff and the other
servants were commanded by McCormick to load upon a certain flatcar
in the construction train about forty steel rails which were then
lying near the track of the railroad. The plaintiff and the other
employees of the defendant proceeded to load the rails on the
flatcar, as directed by McCormick, and under his orders he
directing the labor of the plaintiff and the other servants. Each
of the rails was from 24 to 29 feet long, and weighed from 400 to
600 pounds. To lift one of them, the labors of about ten men were
required, and the plaintiff and the other servants under the
command of McCormick were divided into two gangs of ten or more men
each. In loading the rails, each of the gangs was required and
directed by McCormick to act in concert and to lay hold of and lift
the rail, and walk with it to the flatcar, and there halt, dress,
and at the word of command given by McCormick, lift the rail, and
cast it, with one motion, on the floor of the flatcar. By reason of
the length and great weight of the rails, it was necessary, in
loading them upon flatcars, that, in order to avoid injury to the
workmen engaged, care, deliberation, and concert of action should
be observed, and that some person should give the word of command
in each of the several stages of progress in loading them, and
particularly at the point when the rail was to be thrown upon the
car. Prior to
Page 133 U. S. 372
the injury complained of, McCormick had controlled and directed
the men in loading the rails, and the plaintiff supposed that, in
loading the last rail, the one which hurt him, the same course
would be pursued by McCormick. Neither at such place nor nearer
than Byers station was there any siding or switch. When all but
three or four of the rails were loaded upon the flatcar, the
regular freight train of the defendant appeared, rapidly
approaching from the east. McCormick thereupon, with violent oaths
and imprecations, urged the plaintiff and the other men of the
party to make haste and complete the loading of the rails, so that
he might move the construction train back to Byers station and out
of the way of the freight train. By reason of the great haste so
commanded by McCormick, and the confusion resulting therefrom, the
plaintiff, who had before been, and then was, working and lifting
at the end of the rail seized by the gang to which he belonged, was
crowded off from that rail. McCormick, who was then, as before,
standing on the flatcar, commanded the plaintiff, with oaths and
violent language, to lay hold of the other rail, and not to stand
idle. Thereupon the plaintiff, in obedience to the commands of
McCormick, rushed to and seized upon the rail being lifted by the
other gang of men, and moved forward to the flatcar. While the
plaintiff and the other men so holding that rail were awaiting the
word of command to lift it, McCormick, with further oaths,
imprecations, and harsh and violent commands, ordered the party to
get the rail on in any way they could, not giving to them any word
of command. Thereupon the party, hurried and agitated by the oaths,
imprecations, and violent commands of McCormick, lifted without
concert, some at one moment and some at another, and threw the rail
at one end with force, and at the other end with less force, so
that it struck the side of the flatcar at one end, and fell
backwards. The plaintiff, seeing that it was about to fall,
endeavored to retreat out of the way of it, but was unable to avoid
it, and it fell on him, bore him down, and broke and crushed his
foot and leg. He had been in the service of the defendant only
about seven days. At the time of his going with McCormick to the
place of loading the rails,
Page 133 U. S. 373
the time at which the freight train of the defendant would
approach that place was well known to McCormick and was unknown to
the plaintiff. The freight train was overdue at Byers station at
the time the construction train left that station, and McCormick
knew the fact of its being so overdue and knew that the freight
train was then coming toward Byers station from the east, and the
plaintiff knew nothing about the freight train. The injury so
occasioned to the plaintiff was probably due and owing to the haste
and confusion occasioned by the oaths, violent commands, and
injunctions to make haste given by McCormick.
The only question to be considered in the case is whether it was
proper for the court to instruct the jury to find for the
defendant, or whether the case should have been left to the jury.
We are of opinion that it was proper to direct a verdict for the
defendant. On the facts set forth, the injury to the plaintiff was
not caused by any negligence on the part of McCormick. It is
alleged that McCormick, knowing of the approach of the regular
freight train, moved out his train in the face of it; but that does
not show any negligence, for it does not appear that the
approaching freight train was so near as to render it unsafe for
McCormick to start the construction train. Whatever the distance
away of the freight train, it would properly be called an
approaching train, and it is very plain that the work of
construction and repair must be done in the intervals between the
running of regular trains. This latter fact was known as well to
the plaintiff as to McCormick, and the plaintiff, being employed to
do construction work with a construction train, must be held to
have assumed the risk of doing it at the times at which it had to
be done. The fact that all of the rails save three or four had been
loaded at the time shows that there was no negligence in
undertaking to load the rails upon the construction train at the
time they were loaded. The negligence on the part of McCormick, if
there was any, could have been only as to the manner of loading the
particular rail whose fall injured the plaintiff. It is clearly to
be deduced from the evidence that the method
Page 133 U. S. 374
described, of lifting the rail, walking with it to the car,
halting, dressing, and then, acting in concert, lifting the rail at
the word of command given by McCormick and throwing it upon the
floor of the flatcar, was a proper and safe method of loading the
rails, and that if, in the course of such action, the injury to the
plaintiff had happened, no negligence could have been complained
of. The negligence alleged consists in the fact that after the men
had lifted the rails in question and had carried it forward to the
car, and were there holding it a waiting the word of command from
McCormick to lift it further and throw it on the car, McCormick
failed to give the word of command in such a way as to produce
concert of action in the men, but, on the contrary, ordered them to
get the rail on the car in any way they could. The fact that
McCormick hurried the men does not show any negligence on his part
or excuse any negligence on theirs. The necessity of keeping the
construction train out of the way of the freight train was one of
the risks of the employment. The use of oaths and imprecations by
McCormick was not an element of negligence. The fact that McCormick
urged the men to hasten, even if, as a consequence, the plaintiff
and his fellow workmen became confused and failed to act in
concert, cannot be regarded as a fault or negligence in McCormick.
Whatever negligence there was was the negligence either of the
plaintiff himself or of his fellow servants who with him had hold
of the rail.
These views being conclusive in favor of the defendant, it is
unnecessary to consider the broader grounds urged in support of the
judgment below.
Judgment affirmed.
BREWER, J., concurs in the judgment.