Lee v. Central Railroad & Banking Co.

Bleckley, Chief Justice. This being the first grant of a new trial, wTe should leave it to the general rule, were it not that, upon looking into the evidence, ive are of opinion that a new trial would be wholly superfluous. For the plaintiff was his own witness, the defendant introduced no evidence, and on the case made by the plaintiff himself there can be no recovery. His injury was purely accidental. He was probably faultless himself and he certainly shows no fault on the part of the company, unless the company is to be treated as an insurer against aeeideuts to its employees, w’fiich, of course, is not its legal character or i’elation. He was a brakeman and in the course of his duty stepped from the engine to the ground, the engine being in motion. In so doing he struck his right foot against a large clinker of coal-dross five or six inches through one way, and three or four inches the other. It was nearly covered up with other dross from the engine which he stepped into. That dross consisted of rakings from the furnace. These rakings do not generally consist of pure ashes, but sometimes have clinkers — generally so, unless they have been walked over long enough to be broken up. Frequently clinkers are so soft that walking over them wfill break them, and he had broken many. Generally a [233] good many piles of this dross are along the track. He could not say how far this particular pile extended. He had seen piles two hundred yards long. Ih’oss that comes from the engines is taken from the side of the track and used for ballast between the rails. At that time, a construction train was engaged in such removal. This particular clinker was of unusual size, the average being about as large as a hen-egg. ¥e have said the injury was an accident. It might be termed a doublebarrelled accident. First, one clinker of unusual size got into a pile of dross, and secondly, the plaintiff happened to step out upon that particular pile and struck his foot against that particular clinker. There is no suggestion that the condition of the track or the neighboring surface was unsafe, save in that one spot, and there is no suggestion that the plaintiff’s duty required him to step off at that spot rather than any other. Had it not been for the mere chance of his selecting the particular few inches of space occupied by that oue clinker, he would have, in all probability, performed his duty in safety. It cannot be incumbent on railroad companies or any one else iu such a world as this, to keep the whole face of the earth on which servants and employees are to execute their functions clear of every object that may cause an employee to slip up or be thrown down. Such a rule would require that farmers should keep their premises clear of corn-cobs; for a cob, when stepped upon, may roll under the foot and produce a fall. So of small stones and sometimes sticks or other rubbish. The plaintiff’s injury was simply a misfortune, the incident of his employment and of the risk consequent thereon. In the exercise of our power of direction, we direct that the court enter judgment for the defendant below as in case of nonsuit, and that the motion for a new trial aud the judgment thereon be of no effect, except' [234] to set aside the verdict and as a basis for this writ of error and a final disposition of the case. Judgment affirmed.