If an employee can, by the use of his eyes, see that the
machinery is defective, he is bound by that fact, even though he
has not actually observed the defect; but a fireman who has only
been six hours on an engine is not bound to have made a careful
examination of the engine, in order to charge the company with
negligence or to exonerate himself from contributory
negligence.
There is no necessity for the court to call the attention of the
jury to the rule that a railroad company is only bound to exercise
reasonable care to supply a reasonably safe engine when it appears
from uncontradicted evidence that the engine supplied was not
equipped with brakes under circumstances which made the omission
prima facie evidence of negligence.
Where the company has negligently failed to equip an engine with
brakes and it is derailed by striking an obstacle which was on the
track without
Page 191 U. S. 335
negligence of the company, and there is evidence that the engine
could have been stopped more quickly with than without brakes, it
is for the jury to say whether there would have been an accident
had the brakes been on and fit to use, and if the obstacle caused
the necessity for brakes, the neglect of the company to furnish
them constitutes the immediate and proximate cause of the accident,
rather than the existence of the obstacle.
The facts are stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
Holloway, the plaintiff below, brought this action in a state
court of Arkansas against the railroad company to recover damages
for personal injuries alleged by him to have been sustained through
the negligence of the company while he was in its employ and acting
as fireman on one of its engines. The action was removed into the
United States district court in Arkansas on account of the
company's being incorporated under an act of Congress.
Upon the trial, the jury found a verdict for the plaintiff, and
upon writ of error from the circuit court of appeals, the judgment
entered upon the verdict was affirmed, 114 F. 458, and the company
has brought the case here for review.
The amended complaint alleged that the plaintiff was, on October
27, 1900, in the employ of the defendant company as a fireman and
that, on the night of October 31, 1900, while he was so engaged,
the engineer of the engine on which he was employed received orders
from his superior officer directing him to back up his engine
(consisting of an engine and tank or tender) from Brinkley east to
Hulbert, a distance of about sixty miles, and that, upon receiving
the orders, the engineer and the plaintiff requested that they be
permitted to reverse or turn the engine so that the headlight would
be in front and
Page 191 U. S. 336
the tender or tank in the rear, and they would thereby be
enabled to run the same with greater safety, but this request was
refused, and they were directed as stated; that, in obedience to
the orders, they left Brinkley about 11 o'clock at night, and
continued to run the engine backward until it reached a trestle
about thirteen miles east of Brinkley, when they ran upon and
collided with a horse upon the said trestle, without fault upon
their part, and the switch engine was derailed, and plaintiff
caught between the tank or tender and the engine, and seriously and
permanently injured.
One ground upon which negligence of the defendant was founded
was, as alleged in the complaint, the bad condition of the brakes
on the engine, which it was alleged were not in a condition to
work; that the same were out of repair, and that there were no
brake shoes on the brakes of the engine, and as a consequence the
engine brakes could not be worked, and therefore when the engineer
discovered the horse on the track, and applied the air brakes,
those on the wheels of the tank or tender were successfully
applied, while, on account of the absence of shoe brakes on the
engine, the brakes could not be worked, and the effect of applying
the air brakes was to stop the tank or tender without having any
effect on the engine, and the engine was therefore forced with all
its weight and momentum against the tank or tender, thereby
breaking the cast-iron connection between the engine and tank or
tender, and bringing the ends of the engine and tank close
together, and as the plaintiff was attempting to escape by going
out between the ends of the engine and tank, he was caught between
the same and thereby injured; that he had only been on the engine
for a few hours, and knew nothing of the dangerous condition of the
engine brakes.
These various allegations of the ignorance of the plaintiff and
of orders given to back the engine were denied by the defendant.
The company averred that the engine had no brakes whatever on it,
and that the brakes on the tender or tank were in good working
condition, and it denied that it was
Page 191 U. S. 337
in anywise guilty of negligence which caused the injury. It also
averred that, if the plaintiff sustained any injury, it was due to
his own carelessness or negligence, and was the result of a risk
assumed by him for which the defendant was not liable.
The chief defense was founded on the allegation that the
plaintiff assumed whatever risk there was in his occupation of
fireman on the engine in question, and that he in fact knew
perfectly well that the engine had no brakes, and that he could not
but have observed that fact on a ride of fifty or sixty miles which
he had taken on the engine prior to going out on it the evening in
question.
The plaintiff, however, swore distinctly that he did not know of
the absence of brakes on the engine. By the consent of the parties,
the jury viewed the locomotive, and the court gave the jury
instructions in relation to that matter, and told them that, in
examining the engine --
"You will go inside and try to put yourselves only in the same
place that the fireman would naturally occupy, and then, occupying
that place, you are to determine whether the wheels of the engine
on which the brakes would be can be seen from there without looking
for them, while a man is employed for several hours doing work on
the engine as a fireman -- that is, whether he could easily see
them by just keeping his eyes open."
And the court also stated:
"A man cannot shut his eyes and say he don't want to see
anything which a reasonable man could not help but see if he keeps
his eyes open."
"Now if for that reason -- that is, if the fact that there were
not any brake shoes on that engine was obvious to any reasonably
prudent man who runs on it as a fireman for several hours, as the
evidence shows that plaintiff did for six hours, from Hulbert to
Brinkley, before he went back again before the accident happened --
that is perfectly obvious to a man who is fireman and traveling for
six hours (without hunting for it),
Page 191 U. S. 338
then the court will tell you that he had knowledge of, and ought
to have known it, and he is chargeable with it as if he had known
it."
Taking the whole charge together upon the subject of the
knowledge by the plaintiff of the absence of brakes on the engine,
we think there was no error in the judge's charge. It amounted
simply to a direction to the jury that the man was bound to use his
eyes, and if by their use he could see that the machinery was
defective, he was bound by that fact, even though in truth he had
not observed it; but that he was not bound to make a careful
examination of every particle of an engine upon which he was
fireman in order to charge the defendant with negligence or to
exonerate himself from the charge of contributory negligence.
Upon the subject of the duty of the defendant to furnish safe
machinery, the court said:
"By the laws of the country, the defendant was bound to furnish
its employees working tools which were reasonably safe, and a place
to work in which was reasonably safe. If it does that, then it had
discharged its duty, and in case of accident to one of its
employees, it is not liable for the injuries sustained by him."
Freed from the surrounding facts and viewed simply as an
abstract proposition, it might be maintained that the court erred
in its charge that the company was bound to furnish its employees
working tools which were reasonably safe and a place to work in
which was reasonably safe, and when it has done that, it has
discharged its duty. The charge left out the condition that an
employer is only bound to take ordinary and reasonable care, as
applied to the circumstances under which the liability arises, to
furnish reasonably safe appliances and machinery.
Hough v.
Railway Co., 100 U. S. 213,
100 U. S. 218;
Union Pacific Railway Co. v. O'Brien, 161 U.
S. 451. But the fact that the company had failed to
supply such a machine because of the absence of brakes had been
fully proved by uncontradicted
Page 191 U. S. 339
evidence, and, indeed, was conceded by the company. The
circumstances, unexplained, were such as to make the omission to
furnish a brake for the engine
prima facie negligence on
the part of the company. It was unexplained by any evidence, and
remained as a fact proving negligence. There was no occasion,
therefore, to call attention to the fact that the company was only
bound to exercise reasonable care to supply a reasonably safe
engine, because the uncontradicted facts showed it had not
furnished such an one, and there was no evidence that it had
exercised ordinary or reasonable care to furnish it, but, on the
contrary, there was evidence to show that it had not, and it was
unexplained and uncontradicted. The failure of the court to call
the attention of the jury to this limitation of liability was
unimportant because of the evidence already given, which showed the
defendant had not complied with the limitation.
It is insisted, however, on the part of the defendant, that the
court erred in not holding that the absence of brakes on the engine
was not the proximate cause of the injury; that the presence of the
horse on the trestle was the proximate cause of derailing the
tender and engine, and that the company was not guilty of any
negligence by reason of which the horse came upon the trestle.
We think this claim is unfounded, and that the proximate cause
of the injury within the meaning of the law was the absence of the
brakes on the engine. At any rate, there was evidence which made it
a question for the jury to say whether the accident would have
happened if there had been brakes on the engine in good order and
fit for use.
It may be assumed that there was no negligence on the part of
the defendant by reason of which the horse came upon the trestle,
and that it was not therefore responsible for any damage of which
the horse was the sole and proximate cause. We think one proximate
cause of the accident was the absence of the engine brakes. The
purpose of a brake is to stop the engine more promptly than can be
done without it, and
Page 191 U. S. 340
if there had been a brake on the engine, it would, if used, have
probably prevented the accident. At any rate, there was evidence to
that effect. The absence of a brake which, if present, would have
prevented the accident was therefore a proximate cause thereof. If
an obstacle on the track which necessitates the using of the brake
is to be regarded as the sole proximate cause of an accident which
occurs only because there was no brake on the engine, the result
would be that the company would never be liable, no matter what its
negligence in not providing effective brakes, so long as its own
negligence did not cause the presence of the obstacle on the track.
This cannot be true.
The obstacle is one of the things which caused the necessity to
use the brake, and it is the neglect of the company in not
furnishing the brake which constitutes an immediate and proximate
cause of the injury.
The finding of the jury under the instructions of the judge must
be regarded as finding that the accident would not have occurred if
there had been a brake on the engine.
These are the principal objections to the judgment under review.
The other matters appearing in the record we have examined, but do
not find that they are of sufficient importance to require any
further notice. The judgment of the Circuit Court of Appeals for
the Eighth Circuit is therefore
Affirmed.