Where it appears by an examination of the entire charge to the
jury that the court understood the true rule as to defendant's
liability and the jury were informed of the limitations thereon, no
exceptions being taken except to a single detached remark, and no
request being made to the court to restate the rule with his
attention called to the defective portion of his charge, the
judgment will not be reversed because, in certain detached and
incidental remarks made in regard to defendant's liability, the
court failed to state the proper limitation of liability, it also
appearing that the remarks were used under such circumstances as
made it absolutely certain that the jury was not misled
thereby.
Page 191 U. S. 327
The defendant in error commenced this action against the
railroad company, plaintiff in error, in the Pulaski Circuit Court
in the State of Arkansas, to recover damages for personal injuries
sustained by him by reason of the alleged negligence of the
company. He alleged in his complaint that, on February 6, 1900,
while engaged as head brakeman on a freight train of the defendant
company, and while in the discharge of his duty as such, in the
Town of Argenta, near Little Rock, Arkansas, he attempted to jump
upon the pilot of the engine of the train of which he was head
brakeman at a time when the engine was proceeding very slowly
(about four miles an hour) in the freight yards. That, in
attempting to jump upon the pilot, he stepped on an iron stirrup or
step on the pilot or "cow-catcher" of the engine, and where, in the
performance of his duty, he was accustomed to step, and by reason
of its being in a weak and unstable condition, it gave way and
precipitated him to the ground, where he became entangled in the
ties of the railroad track, and the train ran over his left leg,
and bruised and mangled the same so that he was compelled to have
it amputated near the knee. He alleged that the defendant was
negligent in the construction of the step, and was negligent in
permitting it to stay in a faulty and infirm condition, and the
condition of the step was unknown to the plaintiff; that he might
have escaped uninjured but for the negligent construction of the
track, the ties of which stood up above the ground, so that he was
unable to get his foot out in time to prevent the engine from
running over his leg and crushing it.
The defendant is a corporation organized and incorporated under
an act of Congress, and on that ground removed the case into the
United States District Court in Arkansas, and thereafter served its
answer to the complaint. It denied all negligence, and alleged that
the plaintiff was attempting to step upon the front end of the
engine, which was unnecessary and which was careless and improper
on his part, and that he was not required in the discharge of his
duty, nor was it necessary for him to attempt to so ride, and in
attempting to do
Page 191 U. S. 328
so, he was violating the rules of the company. It denied that
the step on the pilot was in a weak and unstable condition or that
it gave way and thereby precipitated the plaintiff to the ground,
and denied that the condition of the step had anything to do with
the precipitation of the plaintiff to the ground, which resulted in
his injury, and it denied that the condition of the step was
unknown to the plaintiff.
Upon these issues, the case came to trial and resulted in a
verdict for the plaintiff, which, upon appeal to the circuit court
of appeals, was affirmed, 116 F. 23, and the railroad company then
sued out this writ of error.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
This is quite a simple case, although counsel on both sides have
exhibited very great industry in presenting in their briefs in the
greatest detail the substance of all the evidence that was given
upon the trial.
After the evidence was in, a motion was made on the part of the
defendant company that the jury should be instructed to find a
verdict for the defendant for the reason that there was not
sufficient evidence to sustain a verdict for the plaintiff. The
denial of this motion brings up the question whether there was
sufficient evidence upon which to base a recovery, and it is upon
that question that the briefs of counsel have been so full. It is
wholly unnecessary to follow counsel in their minute details of
this evidence. It is sufficient for us to say that it tended to
show the following among other facts:
He was the head brakeman of the train, and as such his
particular position, when running into freight yards like the one
at Argenta, was on the front of the engine, to enable him
Page 191 U. S. 329
to attend to the switches promptly, as they were encountered,
and to prevent the danger of running off the track; that the only
rule of the company which was promulgated and which he ever saw in
regard to the matter of riding on the pilot of the engine was one
warning the employees not to jump on or off an engine when it was
running at a "high rate of speed." The plaintiff said that he had
never received instructions not to ride on the front end of the
engine, but, on the contrary, had often been commanded by
conductors to do so; that, on the occasion of the accident, the
engine was moving very slowly, not more than four miles an hour,
and that, when the plaintiff attempted to board the pilot of the
engine, and received the injury complained of, he was discharging
his duty in the proper and customary manner of a head brakeman
under like circumstances.
The accident occurred about ten o'clock on a dark night, and the
plaintiff carried a lantern to enable him to see to properly
discharge his duties in regard to switches; the pilots of freight
engines are provided with a step or stirrup on which to place the
foot, and where it is customary for the head brakeman to stand when
coming into the freight yard under the circumstances detailed, and
the engine in question had such a step or stirrup. When the
plaintiff attempted on this occasion, after having attended to one
of the switches, to get on the engine, then moving about 4 miles an
hour, he placed his foot on the step mentioned, and it gave way or
went down under him, and his foot came to the ground under one of
the ties, the space between the ties not being filled in, and he
was unable to get it out in time to prevent being run over. This
step or stirrup had been in a defective condition for some time,
and it was so loose three or four days prior to the accident that a
witness and employee of the defendant had at that time warned a
fellow brakeman not to step on it because of the condition it was
then in. The plaintiff had no knowledge that the step was out of
repair or defective before the accident occurred. This freight yard
where the accident occurred had
Page 191 U. S. 330
been constructed a few months before, and the company had but
just commenced to use it in which to park and make up its trains;
that the plaintiff, on account of some physical disability keeping
him off the road for a short period before the accident, had run
into this yard only once or twice before the accident occurred, and
was not very familiar with its condition at the time in question.
He had never been on track No. 3, where he was hurt, until the
evening of the accident, and he had no information concerning the
condition of that track prior to being injured. The plaintiff
testified:
"When I stepped on the engine, this step was on the pilot about
as wide as my hand. I stepped up on it with the hollow of my foot
and leaned over to catch hold of the top of the pilot and my foot
went down with the step, and I hallooed as soon as it went down and
fell, and I couldn't get my foot out and the pilot run over my leg.
My leg got in between the ties and I pulled with all my might to
get it out, but I seen I couldn't get it out and just give up and
let it go. My foot got hung between the ties, between the bottom of
the ties, and held it fast. . . . I hallooed as loud as I could to
make the engineer hear me, but he didn't see me. He must have felt
that the wheel of the engine hit something because he stopped the
engine right where the engineer gets up into the engine. The step
of the engine stopped right at me. I hallooed as loud as I could.
When I got my foot caught in there the train ran over me and mashed
my leg -- mashed it all to pieces; broke the bone, mashed my
kneecap all to pieces. I suffered just as near death as any man
could suffer and not die. It wouldn't have been as hard to
die."
Plaintiff testified that he thought that, if the track had been
filled in, his foot would not have been caught, and that he could
have extricated himself when the stirrup on the pilot gave way.
Other evidence was given on the part of plaintiff of the same
general nature.
On the other hand, the defendant gave evidence tending to show
that, although it was customary to surface up the tracks
Page 191 U. S. 331
in depot yards by filling in between the ties, yet, as this was
a new yard, it was in the condition in which newly constructed
yards are usually left for some time to permit the water to drain
off. Evidence was also given tending to show the impropriety of the
plaintiff's attempting to get on the engine while it was in motion,
and that it was a violation of the rules of the company.
Taking all the evidence, we are of opinion that there was enough
to demand its submission to the jury, and if by that body found to
be true, it was enough upon which to found a verdict for the
plaintiff.
The chief ground upon which the demand for a new trial is
founded outside of the above rests upon certain portions of the
charge of the court to the jury in speaking of the law relating to
the responsibility of an employer to his servant to furnish proper
machinery and appliances for his employee. In two or three places
in the course of his charge to the jury upon that subject, the
court, in speaking of the testimony in regard to the facts
occurring at the time of the accident, said that the company owed
to its employees the duty of furnishing machinery in a reasonably
safe condition and a reasonably safe place for the servant to work
in the discharge of his duties, and a failure to do so makes the
company liable in damages for any injuries sustained by the servant
while in the discharge of his duties, if the servant's own acts of
negligence do not contribute to the accident.
The fault found with this observation is that the court should
have added that the company did not absolutely guarantee to furnish
its employees a reasonably safe place to work and reasonably safe
machinery with which to discharge their duties, but that it
fulfilled its obligations if it observed reasonable care to furnish
its employees those reasonably safe places to work, etc.
It need not be questioned that the charge of the court, without
the limitation proposed, was an erroneous exposition of the law.
Hough v. Railway Co., 100 U. S. 213;
Union
Pacific
Page 191 U. S. 332
Railway Co. v. O'Brien, 161 U.
S. 451,
161 U. S. 457,
and cases cited. A careful reading of the charge, however, shows
that, upon the particular occasions when these remarks were made,
the judge was endeavoring to draw the attention of the jury more to
the question whether the defendant had in fact furnished machinery
in a reasonably safe condition than to the question of its
obligation to use due diligence to furnish the same.
An exception was taken to but one of the remarks of the court
upon this particular subject, and if the defendant had felt that
there was really any danger of any misunderstanding of the rule
which should govern the jury, a request to the court to restate the
rule, with his attention specially called to the defective portion
of the charge, would without doubt have received the immediate
attention of the court, and obtained a charge upon the subject as
requested. We say that because, in looking through this charge, it
is perfectly plain that the court understood the true rule that it
was necessary to show that the company had been negligent in not
taking reasonable precautions to furnish proper machinery and
appliances in order to become liable for the injury sustained by
the employee. The jury were told by the court that, in order to
find the defendant liable, it must determine from the evidence
whether the step or plate in front of the engine and attached to
the pilot and which plaintiff tried to step on at the time of the
accident was, by reason of the defendant's negligence, insecurely
fastened, and that, by reason of its being insecurely fastened, the
plaintiff fell and was injured as alleged.
The court also charged the jury that, unless it was shown by the
evidence that the employer or master was guilty of negligence in
its failure to provide such a safe place for the servant to perform
his duties as, under like conditions, others in similar businesses
are in the habit of furnishing, the defendant would not be liable.
He further said that it was left to the judgment of the jury to
determine from the evidence whether the railroad company was guilty
of negligence in allowing at that time and place the track to
remain with the
Page 191 U. S. 333
spaces between the cross-ties unfilled, and that they were to
consider the fact that this yard had but recently been made, and
that was a pertinent fact in relation to the question of the
negligence of the company.
Again, the court, at almost the end of his charge, stated that
if this plate had been properly fastened when the train left for
its destination, and had been inspected at a proper and suitable
time by the defendant, and was found to be in perfect condition,
and that within a short time before the accident occurred something
unknown or unforeseen had caused it to become loose,
"Then, gentlemen of the jury, they would not be guilty of
negligence, because then they would have exercised due diligence
for the purpose of ascertaining whether everything was in perfect
order."
And once more, the court said:
"Now then, that you are to consider:"
"If you find that it has exercised due diligence, such as any
ordinary reasonable man would exercise in matters of that kind,
then it would not be liable."
"But, on the other hand, if they had not, and it was loose, or
if it was loose at such time that, by the exercise of reasonable or
ordinary diligence, they could have discovered it and repaired it,
and that was the cause of the accident, they have been guilty of
such negligence as makes them liable."
"Of course, so far as the railroad company is concerned, it does
not in any event become the insurer of its servants' or employees'
safety, regardless of its own diligence; all it undertakes to do is
to keep the machinery and its right of way and place where they
work in good and proper order, and use such diligence as a prudent
man and careful man would use. And the company is not liable for
any defect of which an employee has knowledge at the time."
These observations were at the very conclusion of the
charge.
We think it clearly appears that the right directions were given
to the jury in regard to the legal responsibility of the defendant,
and that the detached and incidental remarks made
Page 191 U. S. 334
in regard to such liability, where they failed to state the
proper limitation of liability, were used under such circumstances
as to make it absolutely certain that the jury were not misled
thereby.
Many exceptions were taken in regard to the admissibility of
evidence during the trial of the cause, and to the refusal of the
court to charge as requested by the defendant. We have examined
them all, and are entirely satisfied that no error was committed by
the court in the disposition it made of them. Many of the requests
to charge were covered by the charge of the court actually given,
and many others were but partially correct, and so mingled with
erroneous statements of the law as to warrant the court in
rejecting them.
The judgment of the Circuit Court of Appeals for the Eighth
Circuit, must therefore be
Affirmed.