Carlson v. Cincinnati, Saginaw & Mackinaw Railroad

Grant, C. J. (after stating the facts). The only ground of negligence upon which plaintiff could recover was that submitted to the jury, viz., the failure to have an employé stand upon the footboard of the tender to warn him. The object of the rule requiring an employé to be upon the footboard when backing across public highways is for the protection of the public, and not of the employés of the company. Rohback v. Pacific Railroad, 43 Mo. 187. There was no more danger to the plaintiff in working upon this crossing than there was at any other part of the tracks in the yard outside the highway. There is no testimony tending to show that employés understood that this rule was intended for a protection to them, or that the plaintiff so understood it. Evidently he knew that he was going into a place of danger; that it was his duty to keep a sharp lookout for his own protection; and that he did not rely upon such a warning, because he stood there 10 to 15 minutes, waiting for the [484] engine to pass over. All the witnesses who testified upon the subject, both those for the plaintiff as well as for the defendant, testified that it was the plaintiff’s duty to watch out for approaching cars, and to get out of the way. One of the rules of the company provides: “ Trackmen may expect trains at any moment, and must always be on the lookout and prepared for them.” It is expected, and it is not unreasonable, that trackmen should look put for approaching trains and engines, and especially in yards, where they may be expected at an}*- moment. There was a train going upon another road, and there was a mill near by, making some noise. The law did not permit the plaintiff to rely upon his sense of hearing alone. Obviously he did not intend to, but it is certain that he did. He knew that the engine might come that way. The engineer had signaled for the right to cross. There is nothing to show that he did not hear this signal. The gates were closed. A glance at his surroundings would have warned him of danger. A glance every few seconds towards this engine would have disclosed its approach. Such precaution would not have interfered with his work, and, if it would, there is nothing to indicate that the defendant prohibited him from taking it, or that it expected him to work without taking it. Keefe v. Railway Co., 92 Iowa, 182 (54 Am. St. Rep. 542), is very similar in its facts to this case. The plaintiff’s intestate was struck by the tender of an engine which was backing up. The court said: “The presence of the tracks and cars thereon, and the movement of engines, were constant warnings to him of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger. These rules are founded upon the necessities of the business of operating railways. They are reasonable and just, and are fully sustained by the decisions of this and other courts.” [485] Where plaintiff, an employ.é, stood with his back to the approaching cars, and did not look back or watch for the moving engine, and was struck, it was said: ‘ ‘ It cannot be that, under these circumstapces, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants, and if, by any means, negligence could be imputed to them, surely the plaintiff, by his negligent inattention, contributed directly to the injury.” Aerkfetz v. Humphreys, 145 U. S. 418. Under circumstances somewhat similar, the supreme court of Massachusetts held that an employé had no right to abandon the use of his eyes, and rely upon a warning from every car that might be shunted upon the track where he was working. Lynch v. Railroad Co., 159 Mass. 536. See, also, Schaible v. Railway Co., 97 Mich. 318 (21 L. R. A. 660); Daly v. Railway Co., 105 Mich. 193. The plaintiff was clearly guilty of contributory negligence. It is unnecessary to discuss the other points raised. Judgment reversed, and new trial ordered. The other Justices concurred.