When the employs of a railroad company sues the company to
recover damages for injuries inflicted upon him while in its
service by reason of defective machinery, and it plainly appears
that he was guilty of contributory negligence, and there is no
evidence of a willful or intentional negligence on the part of the
railroad company for the purpose of injuring the plaintiff, there
is nothing in the case to submit to the jury.
Page 152 U. S. 78
This was an action by Schumacher to recover for personal
injuries received by him while in the employ of the defendant
railway company as a laborer upon a gravel train, which was engaged
in "surfacing" or ballasting defendant's tracks in the Indian
Territory.
The complaint alleged that the plaintiff boarded the train at
Tuscahoma to aid in unloading the gravel when the car should reach
its destination; that when the train reached Talihina, it was
stopped on the main track to take on several cars loaded with
gravel, which were then on the side track; that after these cars
were switched to the main track from the side track, they were cut
loose from the engine and run with great force and violence down
grade until they struck the train on which plaintiff was riding;
that the brakeman was unable to diminish the speed or check the
cars by reason of a defective brake, of the condition of which the
defendant had notice or might with proper diligence have had
notice, and that, by reason of the negligence of the defendant in
permitting such defective brake to be used, plaintiff was, by the
striking of the cars against the train on which he was riding,
violently thrown from the car upon the track, the wheels running
over his left foot and inflicting painful and serious injuries. In
a supplemental complaint, plaintiff further charged the defendant
with negligence in failing to make and enforce suitable regulations
as to the manner of switching and making up trains, regulating the
speed thereof, and providing a sufficient number of brakemen to
check and control the cars.
The answer put in issue all these allegations, and pleaded
contributory negligence on the part of the plaintiff.
Upon the trial, the case was submitted to a jury, who returned a
verdict for the plaintiff in the sum of $8,000, upon which judgment
was entered, and defendant sued out this writ of error.
Page 152 U. S. 79
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We do not find it necessary to consider in detail the
specification of errors assigned to the charge of the court in this
case, as we are of opinion that, upon the conceded facts, there was
such contributory negligence on the part of the plaintiff as
required the court to direct a verdict for the defendant.
The testimony showed that plaintiff was employed as a common
laborer by defendant; that it was his duty to assist in loading
cars with gravel, and then ride down on the train to that portion
of the track where the gravel was to be used, and there to assist
in unloading and placing the gravel between the ties. At the time
of his injury, plaintiff was sitting on the end of a loaded flatcar
next to the caboose, with his feet hanging over the side of the
car. The train had stopped at Talihina, a station between the
gravel pit and its destination, to take up ten additional carloads
of gravel, which were standing upon a side track; the original
train consisting of four cars and a caboose. On arriving at
Talihina, the engine left the cars and caboose on the main track,
went in on the siding, coupled on thirteen cars that were standing
on the side track, three of which, next the engine, were not
wanted. When the engine and thirteen cars got on to the main track,
the ten cars that were wanted were cut loose from the engine and
allowed to go down the grade. The grade proved to be a little
steeper than the brakeman in charge of the cars supposed, and, to
use his own words,
"the cars got the start of me a little, and, when I saw they
were going to hit a little too hard, I halloaed to the men 'Look
out,' I saw they were going to hit harder than I thought, harder
than cars ought to strike in making a coupling."
They came in contact with that portion of the train on which
plaintiff sat, with a violent jar or shock, which caused him to
lose his balance, fall with his feet upon the track, when the
wheels passed over a portion of his right foot, necessitating
amputation.
The testimony showed that the train was manned by the usual
complement of trainmen -- namely, a conductor, two
Page 152 U. S. 80
brakemen, an engineer, and a fireman -- and that each was
competent. At the time of the injury, the conductor was near the
forward end of the four stationary cars for the purpose of making
the coupling. The engineer and fireman were in their proper
positions upon the engine. One brakeman was with the engine and
three cars, which were being replaced on the side track, and the
other was on the ten cars which were to be attached to the train.
There was no evidence of any defect in the brakes, machinery, or
appliances, or any failure to make or enforce suitable regulations,
and these issues were not submitted to the jury. There was evidence
tending to show that the place where the plaintiff sat when he fell
was a dangerous place to be when cars were being coupled, and
plaintiff testified that he knew that they were about to couple
some cars, but was not watching and did not see the other cars come
down. There was evidence tending to show that both the brakemen and
the foreman shouted to the men on the flatcars to look out, and
that they were distinctly heard by persons in a less favorable
place to hear than the plaintiff. There was also evidence tending
to show that the men had been warned by their foreman and by the
train master not to ride on the flatcars, but to ride in the
caboose, and that the conductor had told this same gang of laborers
that morning that they had better ride in the caboose, and that
there was plenty of room there. There was also testimony that the
men often rode on flatcars with the knowledge of the foreman and
conductor.
The gist of all this testimony is that notwithstanding the
foreman and the train master had warned the men not to ride on the
flatcars, and had provided a caboose in which he was told it was
safer to ride, plaintiff selected a place he knew to be dangerous
when cars were being coupled, sat with his legs hanging over the
side of the car in a position in which he could be easily jostled
off, and paid so little attention to what he knew was going on that
he not only did not watch or see the other cars coming down, but
failed to hear a warning shout heard by others in the vicinity at
least one of whom was more remote than he. Under such
circumstances,
Page 152 U. S. 81
he has no right to call upon the company to pay him damages. Had
he been riding in the caboose, he would have been safe. Had he
taken the precaution to notice what was going on, he could not have
failed to see that a collision was imminent, and could have jumped
off. The only negligence chargeable against the defendant was in
backing the train down at too great speed. But giving to his own
conduct as well as that of the defendant the construction most
favorable to the plaintiff, there was no theory upon which it was
proper to submit the case to the jury. There was no negligence by
the defendant shown as occurring subsequent to the negligence of
the plaintiff, since his negligence was continuous down to the
moment of the injury. Neither was there any evidence of a willful
or intentional negligence on the part of the defendant for the
purpose of injuring the plaintiff. None such was averred in the
complaint, and none such was shown in the testimony. The case of
Railroad Co. v. Jones, 95 U. S. 439, is
directly in point, and is decisive of this.
See also St. Louis
& San Francisco Railway v. Marker, 41 Ark. 542;
Glover
v. Scotten, 82 Mich. 369.
The judgment of the court below must be reversed and the
cause remanded with directions to set aside the verdict and for
further proceedings in conformity with this opinion.
