In an action against a railroad company brought by one of its
employees to recover damages for injuries inflicted while on duty,
where the evidence is conflicting, it is the province of the jury
to pass upon the questions of negligence, but where the facts are
undisputed or clearly preponderant, they are questions of law for
the court.
In this case, after a review of the undisputed facts, it is held
that there can be no doubt that the injury which formed the ground
for this action was the result of the inexcusable negligence of the
company's servant.
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
The action was brought below to recover damages from the
defendant (plaintiff in error here), upon the ground that it had
negligently, on September 12, 1888, caused an injury which resulted
in the death of Pool, the plaintiff's intestate. The cause was
tried by a jury. At the close of the evidence for the plaintiff,
defendant moved for a nonsuit on the grounds (1) that no negligence
had been shown on its part, (2) that the evidence established
contributory negligence on the part
Page 160 U. S. 439
of the deceased. These motions were overruled, and exceptions
reserved. The defendant thereupon rested. Exceptions were also
taken to the action of the court as to the following: (a) an
instruction of the court that if the jury found that Pool, the
deceased, was a car repairer, and in a different line of service
from that of the negligent servant (if any such there was), and
Pool's death was caused thereby, then defendant was liable; (b) to
an instruction that the trainmen or yardmen of the defendant
company were not fellow servants of the deceased, who was a car
repairer; (c) to the action of the court in submitting to the jury
for their determination as a fact whether Pool, the deceased, was a
fellow servant with the switchman Kilpatrick, by whose negligence
it was claimed the injury resulted, and (d) to an instruction that,
in ascertaining the quantum of damages, the jury should consider
the number of the family left by the deceased and the ages of his
children.
Before the case went to the jury, the defendant renewed its
request for a peremptory instruction in its favor, which being
refused, exception was taken. The court, in its general charge to
the jury, gave as the law of the case what is usually denominated
the "departmental theory" of the law of fellow servant -- that is
to say, it substantially instructed that the criterion by which
they were to determine whether the relation of fellow servant
existed was by ascertaining whether the servants were employed in
the same department of service, and, if not so employed, they were
not fellow servants. Two questions were submitted by the court to
the jury to be answered by them. They were first, "what of the
employees of the defendant, if any, were negligent in the discharge
of their duty, and by which the deceased was injured?"; second,
"Did the deceased use such care and precaution to avoid the injury
as a prudent man, in the exercise of due diligence, should have
used?" The jury returned a verdict in favor of the plaintiff,
answering the first question, "Kilpatrick," and the second, "Yes."
After a denial of a motion for new trial, an appeal was taken to
the supreme court of the territory, in which court the judgment was
affirmed. The grounds
Page 160 U. S. 440
upon which this affirmance was based were that there had been no
negligence on the part of the deceased, and that the switchman
Kilpatrick was not a fellow servant with the car repairer, because
they were employed in different departments of service. One of the
judges dissented on the ground that the deceased had been guilty of
contributory negligence. 7 Utah 303. The case was then brought by
error here.
The questions which the record presents are first, was the
accident which caused the death of Pool the result of his own
negligence, hence giving rise to no cause of action on behalf of
his representatives?; second, and if the accident was occasioned by
the negligence of Kilpatrick, the switchman, can the
representatives of the deceased recover damages resulting from such
fact? Or, to put the proposition in another form, were Pool and
Kilpatrick fellow servants? We will primarily consider the first of
the foregoing inquiries, because it is manifest, if the injury was
brought about by the negligence of Pool, the question of fellow
servant becomes wholly immaterial.
Was the accident caused by the negligence of Pool?
To answer this question involves an analysis of the evidence
(which the record fully sets out), not for the purpose of weighing
the testimony or of ascertaining the preponderating balance
thereof, but in order to arrive at the undoubted proof from which
the legal consequence -- negligence -- results. There can be no
doubt, where evidence is conflicting, that it is the province of
the jury to determine, from such evidence, the proof which
constitutes negligence. There is also no doubt, where the facts are
undisputed or clearly proponderant, that the question of negligence
is one of law.
Union Pacific Railway Company v. McDonald,
152 U. S. 262. The
rule is thus announced in that case:
"Upon the question of negligence, . . . the court may withdraw a
case from the jury altogether, and direct a verdict for the
plaintiff or the defendant, as the one or the other may be proper,
where the evidence is undisputed, or is of such conclusive
character that the court, in the exercise of a sound judicial
discretion, would be compelled to set aside a verdict returned in
opposition to it.
Delaware,
Page 160 U. S. 441
Lackawanna &c. Railroad v. Converse, 139 U. S.
469,
139 U. S. 472, and
authorities there cited;
Elliott v. Chicago, Milwaukee &
St. Paul Railway, 150 U. S. 245;
Anderson
County Commissioners v. Beal, 113 U. S.
227,
113 U. S. 241."
The undisputed facts which the record here shows are as follows:
Pool, the deceased at the time he received the injury, was in the
employ of the company as a car repairer, and had been so employed
in its shops at Ogden City, Utah for three or more years prior to
his death. His duty was not only to do repair work on cars which
were brought into the shop for that purpose, but also on cars
outside of the shops and standing on the railway track. On the day
the accident occurred, about half an hour before the usual hour for
quitting their work, Pool and another car repairer, named Fowers,
were ordered by the foreman of the car shops to repair the last car
of a train of eighteen or twenty cars due to leave in a short time
for the West. The train was standing on one of the six or seven
tracks composing a railway yard, and on these various tracks there
was a frequent moving to and fro of trains and a constant switching
of cars backward and forward.
The work to be done consisted in attaching what was called a
"carrying strap" (made of iron, and used to hold up what was known
as a "Miller hook") underneath the platform, about level with the
main front of the car, in advance of and outside the wheels. In
addition to this work, which Pool and Fowers were sent to do, Rice,
who was also a car repairer working in the shop, but doing a higher
grade of work, was sent from the shop to "adjust the air on the
train." These three employees found that in order to do the work of
repairing the strap required the moving of the car a short distance
from the others in the train, and this was accordingly done by the
three -- Pool, Fowers, and Rice. The work "on the air," which Rice
was to do, could not be executed until the repairs to be made by
Pool and Fowers had been completed and the car had been recoupled
to the train. The end of the car which required repair faced north,
towards the train from which it had just been detached, and Pool
and Fowers went under the car in order to do the work assigned them
-- Pool on the west and
Page 160 U. S. 442
Fowers on the east side of the track. Rice waited in the
neighborhood of the car on the east side thereof, so that when they
had finished their work, the car might be recoupled, thus enabling
him to do the duty assigned him of "adjusting the air." The two
men, in going under the car, placed no flag or other signal to warn
of their presence there and thereby protect themselves from the
peril to which they were necessarily subjected. There reason for
not taking this precaution is stated in the testimony of
Fowers:
"Q. Mr. Fowers, couldn't you and Mr. Pool have put up a red flag
out there that would have notified -- put up a red flag or some
other flag that would have notified the engineer of danger?"
"A. Yes, sir."
"Q. Why didn't you put up a flag?"
"A. Because it was too big a work."
"Q. Because it was too much work?"
"A. Yes, sir."
"Q. You thought it would take only a few minutes before you got
through?"
"A. Yes, sir. We also knew that we had a man stationed there to
watch for us, and considered ourselves safe."
"Q. Who was the man you had stationed there to watch for
you?"
"A. Mr. Rice, Mr. George Rice."
"Q. And you considered you were all right with Mr. Rice to watch
for you?"
"A. Yes, sir."
"Q. Who was Mr. Rice?"
"A. He was a car laborer from the shop."
"Q. Was he one of your car repairers?"
"A. Yes, sir."
Shortly after the men went under the car, a switch engine with a
caboose and car moved from a track called the "caboose track"
towards a switch connecting with the track on which the car was
being repaired, and backed down for the purpose of coupling the
caboose to the south end of this car, such end being the opposite
one to that which was being repaired.
Page 160 U. S. 443
The two men under the car could not be seen by the engineer or
by those on the backwardly moving caboose. As the engine and
caboose came back slowly towards the car, both the men under it
heard the noise caused by its movement. However, owing to a curve
in the track, Fowers, who was on the east side of the car, could
not see the engine and caboose approaching, but, hearing them,
spoke to Pool, and said, "I believe they are coming in here." Pool,
who was on the west side, leaned back, and saw the switch engine
and caboose coming down upon them. As he did so, a switchman by the
name of Taylor, who was on the west side, was visible to and in
hailing distance of Pool. The movement of Pool is thus related by
Fowers:
"From his position, he could lean back this way, and could see
the cars -- see the engine and caboose coming from the south to
couple on. He says, 'Yes, they are coming in here.'"
Thereupon Pool made a movement to get from under the car, but
did not entirely do so. Fowers jumped out on the east side. As he
did so, he spoke to Rice, who was standing near at hand, and told
him to stop the switch engine from backing, and to say that men
were under the car repairing, and not to strike or couple to it, as
it could not go out until repairs were finished. Rice walked to the
south end of the car, and, as the caboose slowly backed down,
called out, when it was about twenty or thirty feet away, to
Kilpatrick, a switchman, who was standing on the west side of the
caboose, not to make the coupling, as men were at work under the
car. The caboose continued to slowly back towards the car, and,
when it arrived within about six feet, stopped for a brief moment.
Kilpatrick, on its so stopping, at once gave the signal to the
engineer to back down, which signal was obeyed, the caboose
striking the car with considerable force. In the meanwhile, either
on the going forward of Rice or on the stoppage of the caboose,
Fowers returned quickly to his work, as did also Pool. As the
former stepped under the car, being uneasy lest the caboose should
couple, he looked out, and caught sight of a portion of
Kilpatrick's body, and saw his arm wave the signal to back down. He
cried out to Pool, and threw himself from under the car, and was
thus saved. Pool was not so alert, and
Page 160 U. S. 444
was caught between the car on which he was working and the one
in front thereof, receiving a mortal injury. While it is certain
that Rice gave a warning call to Kilpatrick, and told him that the
men were under the car, and not to couple the caboose to it, there
is no evidence whatever that Kilpatrick heard and understood the
purport of what Rice said to him when he called to him. There is no
proof that he conveyed any signal to Rice which could have produced
upon Rice's mind, or upon the mind of anyone, the impression that
he understood that the men were under the car. There is no proof
that Kilpatrick, after the warning given by Rice, transmitted any
signal to the engineer to stop the train, and therefore there is no
proof that the stop which the caboose made in its backward movement
was the result of any communication, by signal or otherwise,
between Kilpatrick and the engineer, nor, indeed, is there any
proof that the stop was the result of anything but the caution of
the engineer in backing down, under the impression that he had
backed far enough to make the coupling which it was his purpose to
make.
These being the undisputed facts, there can be no doubt that the
fatal injury which Pool received was the result of his own
inexcusable negligence. He went under the car which was standing on
the track with a train in front of it, and with a certainty that a
caboose was to be attached to the rear, without putting out a flag
or other signal warning of his being under the car, in order to
protect himself from the peril which was obvious, and of which he
must have been aware, having been for a period of three years
engaged in doing work of a like nature. This original act of
negligence was continued by his subsequent conduct. As the caboose
backed slowly down, it was both heard and seen by him in ample time
to have enabled him to get from under the car. There was also
abundant opportunity for him to step out and give warning to the
engineer in charge of the switch engine, and to Taylor, the
switchman, who was on the west side of the moving car, thus
insuring absolute safety. He did neither. Nor can these acts of
negligence be legally excused by conceding that Pool's conduct,
whether of commission or of omission, was caused by
Page 160 U. S. 445
the reliance placed by him on the warning which he expected
would be given by Rice, the car repairer, who remained on the side
of the track. Either Rice was the agent of Pool or of the
corporation. If he was the agent of the former, of course, Pool
cannot recover for an injury suffered by him in consequence of the
negligence of his own agent. If Rice, in giving the warning, was
the servant of the corporation, his negligence gave rise to no
cause of action on behalf of Pool, since, in any and every view of
the law of fellow servant, Rice and Pool were such servants. The
negligence of Pool, established by the undisputed testimony, was
not denied by the court below, but was treated as immaterial in
consequence of what the court considered to be proof of neglect on
the part of Kilpatrick, the switchman. Such neglect on his part was
treated as having been the proximate and therefore sole legal cause
of the accident. This conclusion is thus stated in the opinion of
the supreme court of the territory.
"Nor can there be any question made but that Kilpatrick heard
the signal from Rice to stop the engine, and that he acted upon
such signal, and did stop the engine about six feet from the car in
question, under which the deceased was working at the time. The
signal was understood by the switchman Kilpatrick, and obeyed by
him. The verbal communication to Kilpatrick to stop the engine was
a notice and warning as certain, positive, and safe as if there had
been a red flag signal used in such case. In any event, Kilpatrick
received it, understood it, and replied to it, and complied with it
at the time, and he would have done no more had there been a red
flag signal placed by the car."
We have already said that the record, which contains all the
testimony, discloses no proof whatever either that Kilpatrick
understood the call of Rice, that he gave any indication to Rice of
his so understanding, or that, in consequence of Rice's warning, he
signaled the stoppage of the engine, or that he did any of the
things which the court below concluded the undisputed proof
established that he did do. The case, then, on this question
resolves itself to this: that we find no proof whatever of facts
which the court below considered
Page 160 U. S. 446
be undisputedly established. The only testimony which refers to
what took place at the time the warning was given by Rice is that
of Rice and Fowers, Kilpatrick not having been examined. The
following excerpts from the testimony of Rice contain every word
said by him which can in any way throw light on the subject:
"Q. What, if any, conversation did you have with Mr.
Kilpatrick?"
"A. I had no conversation with Mr. Taylor, if that is his name.
I do not know him. There were two switchmen. I didn't know the
names. I had no conversation with Mr. Taylor. I had no conversation
any further than to tell Mr. Kilpatrick not to come up to touch the
cars; there were men working under the car."
"Q. How far was he from you at that time?"
"A. Well, it was twenty or thirty feet at the time I told him
this."
"Q. Where was he at that time?"
"A. He was on the west of the caboose."
"Q. Now then, you told him that. What did you see, if anything,
him do?"
"A. Well, I saw him do nothing more until the engine and caboose
stopped within six feet of this freight car that they were working
on, when it stopped still. The next signal was, Mr. Kilpatrick gave
a motion."
"Q. What was that?"
"A. For it to come back, and it came back with great force, and
at that time I heard Mr. Fowers holler, 'Pull up,' I run back to
where Mr. Fowers was. He was at the other end of the car where he
was at work previous to my going up and notifying him not to come
down, and I saw Mr. Pool in between the cars, and we yelled for
help. . . ."
"Q. How long after you told Mr. Kilpatrick that there were men
under the cars was it that you saw Mr. Kilpatrick go and make the
signal?"
"A. How?"
"Q. How long after you told Mr. Kilpatrick that there were men
under the car? "
Page 160 U. S. 447
"A. How long after that? Oh, it was very short."
"Q. And then what, if anything, did the engineer on the car, on
the engine that he was working, do in response to that signal? What
did the engineer do with his engine in response to that?"
"A. Why, he backed up."
"Q. How did he back up?"
"A. He came back with great force to this car."
This testimony, it is apparent, does not even tend to show that
the switchman Kilpatrick understood the warning given by Rice, or
that he acted upon it by transmitting a signal to the engineer to
stop the train, and then signaled to continue. The mere presence of
Rice, if, owing to the noise of the moving train or from other
reasons, his warning either did not reach or was misunderstood by
Kilpatrick, was not sufficient to convey the fact that men were
working under the car, and therefore it should not be coupled. Rice
was an air adjuster. His work could not be done without the
coupling of the car. His mere presence, therefore, if his voice was
not heard and his words understood, would have naturally suggested
that he desired the coupling to be done in order that his work
might be accomplished. Nor can it be considered, without any
evidence tending to that end, that Kilpatrick understood the
warning, knew the men were under the car, signaled to stop the
backward movement of the caboose, and then suddenly, without any
change in the situation, gave the signal to back up. Such conduct
on his part would have been murder, and is certainly not to be
presumed without proof, on bare suspicion. The testimony of Fowers,
full excerpts therefrom being in the margin, while more
contradictory than that of Rice, likewise fails to show that
Kilpatrick actually understood Rice, or acted on the warning by him
given.
*
Page 160 U. S. 448
An examination of this testimony at once demonstrates that the
only matter therein which seemingly tends to show that Kilpatrick
understood Rice is the statement of Fowers that he heard Kilpatrick
make some reply, although the witness could not give the nature of
the reply. But the question is not whether Kilpatrick heard the
voice of Rice, but whether he understood his meaning. Therefore,
the mere fact that the witness testifies some reply was made,
without giving the reply,
Page 160 U. S. 449
in no way shows that Rice's warning was comprehended. Indeed,
the entire context of the testimony shows that Fowers himself was
uncertain whether the warning given by Rice was received and
understood by Kilpatrick, for when asked in the first instance
whether Kilpatrick, in giving the signal to back, did so after he
had been warned by Rice, answered, "Well, I suppose " -- a mere
conjecture; and again, when asked if the engineer had stopped the
engine in consequence of a signal
Page 160 U. S. 450
from Kilpatrick, his reply was, "Yes, sir; it must have been" --
a mere opinion. On cross-examination, in answering a question
asking, "Who, then, signaled the engineer not to back back?" Fowers
answered, "Yes, sir." But the whole context of his testimony shows
that the word "not" in the question was misunderstood by the
witness, for he was testifying solely as to the signal given to
back after he (the witness) was under the car. Indeed, this is the
only signal which Fowers testifies he saw given by Kilpatrick. To
construe this question and answer as relating to a presumed signal
not to back given by Kilpatrick to the engineer in consequence of
Rice's warning would contradict the whole of Fowers' testimony,
since it clearly shows that no such signal was seen by him, and
that the only signal which he noticed was the one given to make the
coupling which led to the death of Pool.
Page 160 U. S. 451
Finding no proof whatever that the switchman actually understood
the warning given by Rice and acted upon it, there is nothing in
the record to support the conclusion below that, as the warning was
actually given and understood, Pool was thereby relieved from the
legal consequence of his negligence in having gone under the car
without placing the usual and customary signal, of having remained
there in the presence of an impending danger, and, when there was
ample opportunity to avoid it, of having failed himself to give a
warning as the car moved down, which the proof shows he could have
done, thus rendering his position absolutely safe.
The judgment is reversed, and the case remanded, with
directions to grant a new trial.
*
"Mr. Rice was standing outside of the car, and I says to him,
says I, 'You go and stop him, and don't let them hit this car at
all,' and told him that it could not get out on the train until it
was repaired. Of course, they could not make up the train until
that car was repaired, and says I, 'Don't let them hit the car at
all, and we will have it done in five minutes.' Says he, 'All
right,' and stepped down to the other end of the car, and I saw him
signal for the engineer to stop, making the regular signal with his
arms to them coming up."
"Q. What, if anything, did he say at that time?"
"A. He didn't say anything at that time; he stood and signaled.
I was standing right at the end of the car, still looking down, and
saw Mr. Pool leaning back over the rail this way -- about in that
position -- looking back at the engine coming. They came up very
slow within about six feet of the car that he was working under,
and then came to a stop. I heard Mr. Rice tell somebody not to hit
the car; that they were working there. As soon as I heard him say
that, I just went right to work, and jumped right under the car
again with Mr. Pool, and he turned his attention right to the work,
and we went to work again. I felt a little uneasy myself, thinking
they might try to couple the caboose onto the car that we were
working under. They can do that very easily sometimes, you know,
without moving it. So I leaned over the rail -- I was kind of on my
knees -- and I turned my head, and leaned over the rail to the
east, and looked right out, and there I saw one of the yardmen
giving a signal to back up. I could see the motion of his arm and
part of his body, and says I, 'Look out, Joe, they are right on
us,' and threw myself head first out over the rail."
On cross-examination, he said:
"Q. Did you advise those switchmen to notify the engineer you
were in there?"
"A. No, sir; I told Mr. Rice to tell the switchmen that we were
in there repairing a car."
"Q. And you relied on the switchman to attend to notifying the
engineer? You expected him to notify the engineer?"
"A. Yes, sir."
"Q. To protect you both? Mr. Pool was in the same condition or
position; did he expect that, too?"
"A. Sir?"
"Q. Mr. Pool and yourself both relied on the switchman to notify
the engineer, and you thought the switchman would attend to
it?"
"A. Yes, sir."
"Q. That he would notify them? Could the engineer see you from
where he was, out on the engine? Could he see you were in there,
with the caboose and car between you?"
"A. Yes, sir."
After stating the presence of Rice beside the car, he was
asked:
"Q. And you requested him to notify the engineer?"
"A. Yes, sir. Understand, of course, that they could not use the
air on that train until we had done these repairs, because they
could not make the coupling with the rest. They were waiting for
these repairs."
"Q. Sir?"
"A. They were waiting for these repairs."
"Q. While he was standing there, you just requested him to
notify the engineer not to back back?"
"A. Not the engineer, but the switchman."
"Q. Not the engineer, but the switchman, not to back back the
engine?"
"A. Yes, sir."
"Q. You don't know whether he notified them or not?"
"A. I heard him tell them not to hit the car, and that was
satisfactory to me."
"Q. You supposed it would not be struck?"
"A. I supposed it would not be struck; yes, sir."
"Q. Did you see the switchman yourself?"
"A. I saw one of them,-a part of one of them; I could see his
arm and part of his body."
"Q. Well, was it the switchman that Mr. Rice spoke to that
beckoned the engine to back back?"
"A. Yes, sir; I heard Mr. Rice talking to that switchman, and I
suppose it was that switchman."
"Q. Well, what switchman was that? Who was it?"
"A. I think it was Ben. Kilpatrick. I would not be positive
which one it was."
"Q. But do you think it was Ben. Kilpatrick who signaled the
engineer to back back?"
"A. Yes, sir."
"Q. And struck this car?"
"A. Yes, sir."
"Q. And he did that after he had been warned by Mr. Rice?"
"A. Well, I suppose --"
"Q. Well, after you heard Mr. Rice tell him?"
"A. Yes, sir."
"Q. He done that after he had been told by Mr. Rice not to hit
the car?"
"A. Yes, sir."
"Q. Who, then, signaled the engineer not to back back?"
"A. Yes, sir."
"Q. It was the switchman?"
"A. It was the switchman; yes, sir. . . ."
"Q. I think you got back under the car, as I understand you, and
commenced to fix this bolt?"
"A. Not until they come to a stop."
"Q. Not until they come to a stop?"
"A. Yes, sir."
"Q. Well, after they came to a stop, did you know that there was
any signal, and who was it made the signal to back back
further?"
"A. At the time that I saw the signal I was under the car, but
leaning out over the rail, and I saw the signal for to back up.
That was after they had stopped, and after I had got under the car
again, and at that time I leaned over and saw -- I think it was
Kilpatrick, giving a signal to back up."
"Q. You saw Kilpatrick give a signal to back up, and immediately
after that signal they backed up, and you sprung out?"
"A. Yes, sir."
"Q. And that is the time that Pool was caught?"
"A. Yes, sir."
On his redirect examination he said:
"Q. Where were you when you saw Rice communicate, do you know,
to Kilpatrick?"
"A. I was standing at the north end of this car."
"Q. Standing there?"
"A. Yes, sir."
"Q. Where was Kilpatrick -- on which side of the train?"
"A. He was right in front of the caboose, I think."
"Q. Where was that caboose from where you were?"
"Q. I understand you to say it was about twenty feet to where
Kilpatrick was?"
"A. Yes, sir; when Mr. Rice spoke to him."
"Q. Did you see Kilpatrick when he spoke to him?"
"A. Yes, sir."
"Q. Well, did he hear him? Are you able to say that he heard
him?"
"A. Well, I heard Mr. Kilpatrick make some reply, but I don't
know what it was."
"Q. He replied, did he, when Rice spoke?"
"A. Yes, sir."
"Q. This was the time the engine was standing still?"
"A. No, sir; she was moving then, and came up within about six
feet, and then stopped. She was stopped at the time --"
"Q. I know; but, after Rice spoke to Kilpatrick, the engineer
stopped the engine?"
"A. Yes, sir."
"Q. Was that in response to signal from Kilpatrick?"
"A. Yes, sir; it must have been."
"Q. What did Kilpatrick (of course, meaning Rice) say when he
communicated to Kilpatrick? Did he refer to your being under the
car?"
"A. I would not be right positive as to that. He told him not to
hit the car, and I think he said we were working there."