In an action for personal injuries sustained by a brakeman by
falling from a car, where the claim was based upon negligence in
stopping the car suddenly with knowledge of his position and of the
slippery condition of the roof of the car and also upon the
projection of a nail in the roof of the car which increased the
danger and contributed to his fall, held,
there was no
error in the court's declining to rule that the chance of such an
accident was one of the risks assumed by the plaintiff, or that the
question whether the defendant was liable depended on whether the
freight train was handled in the usual and ordinary way. It was
proper for the court to leave it to the jury to say whether the
train was handled with due care.
The case is stated in the opinion of the court.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for personal injuries brought by an employee
against a railroad company. It was tried in the circuit court,
where the plaintiff had a verdict. It then was taken to the circuit
court of appeals on a writ of error and bill of exceptions
Page 189 U. S. 469
by the company, and now is brought here on a further writ of
error, the company being a United States corporation. A good deal
of the argument for the railroad is devoted to disputing the
testimony of the plaintiff below and arguing that the verdict was
excessive, but, of course, we have nothing to do with that. New
York, Lake Erie & Western Railroad v. Winter, 143 U. S.
, 143 U. S. 75
Lincoln v. Power, 151 U. S. 436
must assume the most favorable statement of the plaintiff's case to
be true unless some particular request for instructions makes it
necessary to deal with conflicting evidence. That statement may be
made in a few words.
Behymer had been in the employ of the company as a brakeman
about three months. On February 7, 1899 at Big Sandy, in Texas, he
was ordered by the conductor of a local freight train to get up on
some cars standing on a siding and let off the brakes, so that the
engine might move them to the main track and add them to the train.
The tops of the cars were covered with ice, as all concerned knew.
He obeyed orders; the engine picked up the cars, moved to the main
track, and stopped suddenly. The cars ran forward to the extent of
the slack and back again, as they were moving up hill. The jerk
upset Behymer's balance, the bottom of his trousers caught in a
projecting nail in the running board, and he was thrown between the
cars. It is true that the jury might have drawn a different
conclusion from his evidence, or have disbelieved it in essential
points, but they also were at liberty to find, as they must be
taken to have found, that the foregoing statement is true. The car
belonged to another road, but was in the charge of the defendant
company, and, according to the statement of the counsel for the
plaintiff in error, had been inspected before the accident,
although we should have doubted whether the testimony meant to go
so far. Behymer based his claim upon negligence in stopping the
cars so suddenly with knowledge of his position and the slippery
condition of the roof of the car, and upon the projection of the
nail, which increased the danger and contributed to his fall. It
should be added that, by a statute of Texas, if there was
negligence, the fact that it was the
Page 189 U. S. 470
negligence of a fellow servant was not a defense. General Laws,
Texas, 1897, Special Session, c. 6, § 1; 2 Sayles' Texas Civil
Stat. 1897, art. 4560f
The fundamental error alleged in the exceptions to the charge is
that the court declined to rule that the chance of such an accident
as happened was one of the risks that the plaintiff assumed, or
that the question whether the defendant was liable for it depended
on whether the freight train was handled in the usual and ordinary
way. Instead of that, the court left it to the jury to say whether
the train was handled with ordinary care -- that is, the care that
a person of ordinary prudence would use under the same
circumstances. This exception needs no discussion. The charge
embodied one of the commonplaces of the law. What usually is done
may be evidence of what ought to be done, but what ought to be done
is fixed by a standard of reasonable prudence, whether it usually
is complied with or not. Wabash Railway Co. v. McDaniels,
107 U. S. 454
doubt a certain amount of bumping and jerking is to be expected on
freight trains, and, under ordinary circumstances, cannot be
complained of. Yet it can be avoided if necessary, and when the
particular and known condition of the train makes a sudden bump,
obviously dangerous to those known to be on top of the cars, we are
not prepared to say that a jury would not be warranted in finding
that an easy stop is a duty. If it was negligent to stop as the
train did stop, the risk of it was not assumed by the plaintiff.
Texas & Pacific Ry. v. Archibald, 170 U.
, 170 U. S.
However, the plaintiff did not rely on the management of the
train alone. The projecting nail was another element in his case.
The jury were instructed, with regard to that, that the railroad
company was not liable unless there was a nail there improperly
projecting and a reasonable inspection would have discovered and
remedied the defect. The car was in the custody of the company.
There is no suggestion that the company had not had an opportunity
to inspect, and the contrary was assumed by a request for
instructions on the part of the company. Indeed, as we have said,
its counsel interprets the evidence as meaning that the car had
been inspected before
Page 189 U. S. 471
the accident. It is not pressed that there was error on this
point. See Mackin v. Boston & Albany Railroad,
Mass. 201; Glynn v. Central Railroad,
175 Mass. 510, 512.
The jury were instructed properly on the subject of assumption of
risks and contributory negligence, and we think it unnecessary to
deal more specifically with this part of the case.
It was argued that Behymer had aggravated the injury by refusing
proper surgical treatment. With regard to this, the jury were
instructed in substance, but at more length, that it was his duty
to submit to all treatment that a reasonably prudent person would
have submitted to in order to improve his condition, and that no
damages could be allowed which might have been prevented by
reasonable care. It is suggested that, as a prudent man, he might
have postponed recovery from his injury to recovery of damages. The
instructions plainly excluded such a view. The argument hardly is
serious. We have examined all the minute criticisms on the rulings
and refusals to rule, and discover no error. We deem it unnecessary
to answer them in greater detail.