Where the negligence of the master in not supplying proper
appliances has a share in causing injuries to an employe, the
master is liable notwithstanding the negligence of a fellow servant
may have contributed to the accident.
Defendant's objection to the charge on the ground that it should
have been more specific as to the distinction between sole and
proximate cause cannot be raised by a general exception, nor should
it be sustained if the jury had its attention drawn to the
proximate cause and was charged that, if the negligence of the
fellow servant was the proximate cause, plaintiff could not
recover.
In an action for damages for personal injuries alleged to have
been caused by unsafe appliances of a railroad company, the
admissibility of expert
Page 203 U. S. 466
testimony is within the reasonable discretion of the trial
court, and that discretion is not abused by the admission of
testimony of men who had had practical experience on railroads and
were familiar with structures of the kind involved in the
action.
The defendant in error, who was plaintiff below, recovered a
judgment against the railroad company, plaintiff in error, in a
trial court in Arizona Territory, for the negligent killing of her
son, which judgment was affirmed by the supreme court of the
territory, and the company brings the case here.
The deceased was a brakeman, and had been employed by the
defendant company as such for a few weeks before the accident
occurred in which he lost his life. He acted as one of the brakemen
upon the freight train, which was pushed up on a spur track that
ran from the main line in the Town of Globe, in the territory, to a
mining station, about five hundred yards away. The accident, which
resulted in the death of the deceased, occurred on this spur track
on the fourteenth of July, 1900. The grade of the spur, after
leaving the main line, was for a short distance level. It then
became quite steep upgrade, getting steeper and steeper until it
again became level, under what is termed the tramway house. This
was a structure erected over the tracks, and the bottom of it was
only two feet above the top of the freight cars, and from that
tramway structure to the end of the road the grade was about level,
and the distance a little over a hundred feet. The track ended on a
trestle, with a buffer at the end which was not calculated to
resist a car pushed by an engine, but only to stop on pushed by
hand or by the wind. The trestle ended at the side of a canon, and
there was at that point an abrupt fall to the bottom of the canyon
of seventy-five feet. There was a curve on the spur track which
would prevent the engineer from seeing the end of his train, and he
would have to obtain signals from others in order to run his
engine. The upgrade was so steep that only a few cars could be
taken up from the main track at any one time.
On the occasion of the accident, the train started from the
Page 203 U. S. 467
main line, and was pushed up grade by the engine in the rear.
The deceased was on top of the front car of the train, being
farthest away from the engine at the time the train was being
pushed up. The conductor was on the car next to that of the
deceased, and by his orders the engineer shoved the train as
rapidly as he could, and ran it at the rate of five or six miles an
hour, and then, after a shove, the two cars on which were the
deceased and the conductor were detached from the train and passed
along at that rate of speed under the tramway house and on to the
level portion of the road, which ended in about a hundred feet at
the side of the canyon. The deceased was unable to control the
speed of the cars with his brakes, and the car on which he was
riding passed along and knocked away the buffer and plunged down to
the bottom of the canyon. Eye witnesses of the accident immediately
descended the side of the canyon and found at the bottom the car
and the dead body of the deceased.
There was evidence tending to show that the spur track was not a
safe and proper structure to operate over its length with cars, for
the reason that the tramway house was so close to the top of the
cars when passing under it that the brakes could not be handled,
and there was not sufficient length of road after the train passed
under the house during which to get the cars under control and stop
them before they arrived at the end of the track and the side of
the canyon. The only way in which it ought ever to have been done
was to have the engine at all times attached to the train, and even
then, if anything got out of order with the engine, the train was
not under control of the brakeman, on account of the tramway house.
The buffer at the end of the track was also asserted to be
insufficient, and witnesses were called who testified that the
track was not a reasonably safe one upon which to conduct the
business of the road.
The company, on its part, gave evidence tending to show that the
track was properly constructed, that the buffer was sufficient for
the purpose intended, and that the whole structure
Page 203 U. S. 468
was a reasonably safe place, and that the accident was caused
simply by the flagrant negligence of the conductor, in ordering the
two cars to be detached from the train, and thus taken away from
the control of the engine. It also gave evidence that the buffer
was not to be used at the end of the track to stop cars in motion,
nor were the hand brakes intended to be so used at that spot, as it
was intended that the engine should control the cars, and should
not be there detached from them. They therefore insist that, when
the operation was properly performed, the matters of the low shed,
short track, and insufficient buffer were immaterial. It was all
predicated upon the fact that the cars should be under the control
of the engine, and should not be detached therefrom, as these cars
were, under the orders of the conductor.
Page 203 U. S. 470
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The first question presented by the plaintiff in error is
founded upon an exception to the refusal of the court to instruct
the jury to render a verdict for the plaintiff in error on the
ground that there was no evidence that the railroad company was
guilty of negligence by failing to provide a reason ably safe place
for the servants of the company to work in, that the cause of the
accident was the gross negligence of the conductor in ordering the
cars to be detached from the train and engine, and that such
negligence was that of a fellow servant of the deceased, and did
not form the basis for a recovery against the defendant. We are of
opinion that, taking the whole evidence, enough was proved on the
part of the plaintiff below to make it proper to send the case to
the jury on the question of the negligence of the company.
The next question arises in regard to the charge of the court
upon the proximate cause of the accident, whether it was the
Page 203 U. S. 471
negligence of the defendant company in not furnishing a proper
and reasonably safe place for its employees to work, or that it was
the negligence of the conductor (a fellow servant of the deceased)
in ordering the cars detached from the engine. The court charged
that --
"The conductor of the train was a fellow servant of the man who
was killed, and if the accident was brought about solely by the
negligence of the conductor of the train, then the defendant
company is not liable; or if the accident was brought about by the
negligence of the conductor and the negligence of the man who was
killed, the defendant company is not liable. If, however, the
accident was caused by a failure of the defendant company to
provide a reasonably safe place to perform the work in which the
man who was killed was engaged, then the defendant company is
liable in damages for the death if it was negligent in not
providing such safe place."
"The fundamental question, therefore, for you to determine in
this case is what was the cause of this accident; what brought it
about?"
"If you find that this accident was caused solely by the action
of the conductor in the method which he employed in putting cars on
the spur at the time in question, then you should find a verdict
for the defendant company, and you should not award any damages to
the plaintiff in this case; or if you should find that the dead man
has, through his own negligence, brought about this accident or
contributed to it, then you should find for the defendant, and you
should not award any damages in this case."
"On the other hand, if you find that the defendant company was
negligent in not providing a reasonably safe place for the
performance of the work, you should find for the plaintiff and
award her damages, provided that the negligence of the defendant in
not providing such a safe place was the cause of the accident, or
contributed to the accident."
"To find for the plaintiff, it is not enough that you should
find that the premises were unsafe, or that the defendant
Page 203 U. S. 472
company was negligent in that respect, in not providing a safe
place; you must also find that the place was unsafe, and that the
accident was brought about or contributed to by reason of that
unsafe place. That is, if you should find that the act of the
conductor was the sole, or if you should find that it was the
proximate, or the procuring, cause of the accident, then you should
not award damages; but if you find that the accident was caused by
the acts of the conductor and also by the negligence of the
defendant company in not providing a safe place to do the work,
then you should find damages for the plaintiff. In other words, in
order to award damages to the plaintiff, you must find, first, that
the defendant company was negligent in not providing a safe place
to do the work, and that such negligence was the cause of the
accident or contributed thereto. If you find the accident was
brought about solely by the acts of the conductor, you should not
award damages. If the acts of the conductor alone did not cause the
accident, but the accident was contributed to by the negligence of
the defendant company by not providing a safe place to work, then
you should award damages."
Again:
"Was the place where the deceased was working a reasonably safe
place for the performance of the work to be done there -- a
reasonably safe place, considering the character of the work to be
done and the character of the premises?"
"If you find it was not reasonably safe, and the defendant
company was negligent in that respect, did that fact have anything
to do with the accident, or was it caused by the negligence of the
conductor of the train alone?"
"If it was caused solely or procured or brought about by the
negligence of the conductor, then the defendant is not liable. If
the negligence of the defendant company contributed to the
accident, then the defendant is liable, provided the dead man
himself was not guilty of any negligence which contributed to the
accident."
The company now finds fault with this charge, on the ground
Page 203 U. S. 473
that it was error to charge that, unless the accident was caused
solely by the action of the conductor, the defendant was liable;
that "sole" cause is not synonymous with "proximate" cause, as the
action of the conductor may not have been the sole, although at the
same time it may have been the "proximate," cause, and if it was
the proximate cause, the company would not be liable. The rule
would seem to be that if the negligence of the company had a share
in causing the injury to the deceased, the company was liable,
notwithstanding the negligence of a fellow servant contributed to
the happening of the accident.
Grand Trunk Railway Co. v.
Cummings, 106 U. S. 700;
Ellis v. Railroad Co., 95 N.Y. 546, 552. But, in addition
to the main charge above set forth, the court charged the jury at
the request of the counsel for defendant as follows: that, if the
manner of throwing the cars, as testified to, were unsafe, and the
conductor caused the cars to be so thrown by that unsafe method,
and if such act of the conductor was the proximate cause of the
accident, and that such unsafe method was adopted by the conductor
without the authority or direction of the defendant, the plaintiff
cannot recover; that, if the jury believed that the accident to the
deceased was proximately caused by the negligence of the conductor,
it was immaterial whether the deceased had had previous experience
as a brakeman or not; that, although the jury might believe from
the evidence that other, better, and safer appliances might have
been used by the defendant company, yet the defendant was not
thereby rendered liable in this action if the proximate cause of
the accident was the negligence of the conductor in the manner in
which he conducted the work on the occasion in question; that, as
the conductor was the fellow servant of the deceased, the defendant
could not be held liable if the accident was proximately caused by
negligence on the part of the conductor; that, if the jury believed
from the evidence that the appliances furnished by the defendant
company were defective, yet if they further believed, from the
evidence, that the conductor was negligent in the manner in which
he conducted
Page 203 U. S. 474
the work on the occasion, and that such negligence was the
proximate cause of the accident, without which such accident would
not have happened, then the jury should find for the defendant.
We think the defendant received no prejudice from the charge as
given, taken in connection with the defendant's requests to charge,
which were complied with. If the defendant had desired to obtain a
more specific charge in relation to the distinction between "sole"
and "proximate" cause of the accident as applied to the negligence
of the conductor, the court should have had its attention
specifically drawn to the objection to the word "sole," and the
particular freedom from liability asserted if the negligence of the
conductor were the proximate cause of the accident, as
distinguished from the sole cause. A general exception to the
charge as given would not raise the question.
Spring Co. v.
Edgar, 99 U. S. 645,
99 U. S. 659.
The requests to charge as given show the jury had its attention
drawn to the proximate cause, and that, if the conductor's
negligence were the proximate cause, the plaintiff could not
recover.
A third question arises upon the admission of evidence. Certain
of the witnesses for plaintiff were called to prove that, in their
opinion, the company had not furnished a reasonably safe place for
its employees to work in. This was objected to on the ground that
the witnesses testifying to it were not properly experts, and
should not be permitted to testify. One witness, who testified that
the buffer was not a reasonably safe and proper one, said that he
had been railroading for fifteen years, following the business of
trackman during that time; that it was his business to go over the
track and see if it was in proper shape, and that he had had
something to do with the construction of a railroad; that he was
familiar with the construction of tracks, trestles, and buffers;
that that was what he had had to do; that overhead structures came
under another department; that he considered it unsafe for the
reason that the buffer would afford an obstruction to the wheels
and
Page 203 U. S. 475
that the car would slide off the trucks and go over into the
ravine.
Another witness said that he had been working on railroads for
twenty years, and that, from his experience, he had had occasion to
become acquainted with structures over tracks, over bridges and
highways, and buffers at the end of chutes and tracks, and as to
the control of the cars, their operation and the operation of the
brakes on the cars, the stopping cars, the resisting power of
buffers, etc. He said that, in his opinion, the tramway house was
too close to the top of a car, and that it was an impediment to the
operation of the hand brake of the car, and that the buffer at the
end was not an effective obstruction. Evidence was given by other
witnesses, by depositions, in regard to the structure over the
railroad track and the character of the buffer.
In the cases of all the witnesses, we think the question of the
admissibility of their evidence was one within the reasonable
discretion of the trial court, and that the discretion was not
abused. All the witnesses had had practical experience on
railroads, and were familiar with structures and the character of
buffers mentioned in the evidence. There was certainly enough to
call upon the court to decide upon the admissibility of their
opinions under these circumstances, and we ought not to interfere
with the decision of the trial court in this case.
Spring Co.
v. Edgar, 99 U. S. 645,
99 U. S. 658;
Chateaugay Ore and Iron Co. v. Blake, 144 U.
S. 476,
144 U. S.
484.
There is no error in the record, and the judgment is
Affirmed.
