Bowes v. New York, New Haven, & Hartford Railroad

Barker, J. 1. The refusal to rule that there was no sufficient evidence to warrant a verdict for the plaintiff was right. The uncontradicted evidence was that the conductor was in charge of the train and gave the signal in obedience to which the train was pushed forward and the cars between which the plaintiff was at work brought in contact. There was evidence tending to show that shortly before the conductor gave the signal he had ordered the plaintiff to go to the place where he was hurt, not for the purpose of coupling the two cars when they should be brought together, but for the purpose of fixing a defective coupling, and that the conductor knew or had good reason to know that the plaintiff was still between the two cars and engaged in fixing the coupling, and that the conductor gave the plaintiff no warning that the cars were about to be brought together. From this it fairly could be found that the conductor was negligent in giving the signal for the train to move and that the plaintiff was in the exercise of due care in remaining at his post engaged in the work which he had been bidden to do. If he had gone between the cars merely to couple them [92] when they should be brought into contact, the risk of doing that would have been one of the ordinary risks of his employment, which he assumed, and in that case it would have been his duty to look out for himself and he would not have been entitled to expect any warning that the cars were about to be brought together. But when he was ordered by the conductor in charge of the train to fix a defective coupling, which must be fixed before the cars could be coupled, he had a right to expect that at least unless he should be' given warning the cars would not be moved while he was between them at work, and he could be found not to have accepted the risk that they should so be brought together. 2. We think that the jury should have been instructed that there was no evidence of any negligence of the engineer, and that the only person whose negligence was material upon the first count, upon which alone the case> went to the jury, was the conductor. Probably the presiding judge thought that it was made clear to the jury that they could not give a verdict for the plaintiff by reason of negligence on the part of the engineer by the direction to bring in a verdict for the defendant on the second count which in substance charged neglect upon the engineer. Bnt the second count did not in terms charge negligence upon the engineer, but upon “ some person in the service of the defendant, who had charge or control of a locomotive engine upon the railroad of the defendant,” and the first count did not in terms charge negligence upon the conductor but upon “ some person in the service of the defendant, who had charge or control of a train upon the railroad of the defendant.” There was not in fact any evidence of negligence on the part of the engineer. It is plain upon the evidence that he neither knew nor could have known of any reason why he should not obey the signals transmitted to him in due course as orders, and that all that he did was to obey them in a proper manner. Nor was there any evidence that the train was in charge or control of the engineer or of any other person than the conductor. As the case stood after the election of the plaintiff to rely only on the first count we think the defendant was entitled to have the issues as to the negligence of the engineer clearly eliminated from the case by the instructions requested, and that the statement of the pre [93] siding judge with reference to their action upon the two counts was not a sufficient compliance with the requests. Exceptions sustained.