Hunt v. Kane

BUNN, District Judge, after stating, fixe ease as above, delivered the opinion of the court. There were a great many exceptions taken on the trial to the plaintiff’s testimony which are preserved in the bill of exceptions, and form the foundation for many assignments of error, which it will not be necessary to consider. At: the close of the testimony the plaintiff asked for two special instructions to the jury, the first of which was to take the case from the jury under both counts of the declaration. The second was to take it from 'the jury under the second count, which made the bad and defective condition of the engine and the consequent escaping of the steam a ground of negligence. Both these instructions were refused, and we think property, as there was evidence given under each count sufficient to entitle the plaintiff to have the issues submitted to a jury. The court gave a general charge to the jury, which it must he said was perfectly fair and impartial so far as it went, but did not cover all the different aspects of the case as presented by the testimony. 'The counsel for the plaintiff requested the giving of a large number of special instructions in addition to those already mentioned. all of which were refused by the court, upon what ground, whether thought to be incorrect or because the same jioints were sufficiently covered by the general charge, does not appear. It is always safe for the triad court to refuse special instructions en masse, provided it be (paite sure that the general instructions cover the same points, but. otherwise it is a rather unsafe practice, and not always to be commended. Some of these instructions were properly refused, certainly one or two of them should have been given, while some others seem very doubtful. The fourth request was as follows: “A railroad employ?, working in a railroad yard whore there are many tracks, frogs, guardrails, and oilier appliances used in the work of switehiiig, must use his senses to observe the condition of ilio appliances with and aroitnd which he is required to work. He is charged by the law with knowledge of such defects in such appliances as are obvious and apparent. If, therefore, yon iind from 1 lie evidence that the frog in which it is alleged Kane caught his foot was defective, and had been so for some time prior to the accident, and that the plaintiff, in (lie ordinary course of his work, liad to and did frequently work over and upon the same, and that It was then reasonably ap [260] parent that its condition might endanger, the safety of the switchman working over or upon it, then the plaintiff is presumed to have known the condition of the said frog and the danger, and if he was injured by reason of its defective condition he cannot recover in this action.” This instruction, we think, was properly refused. It told the jury that the plaintiff was charged by the law with knowledge of such defect in such appliances as are obvious and apparent. This may be so in the abstract or under some circumstances. When' must these defects be obvious and apparent? This work was being done in the nighttime, when it might be very difficult to see at the moment whether blocking was in good condition or not. The plaintiff was an “extra” hand in that yard. He worked in other yards as well. 1 The evidence was that the blocking had to be repaired continually, and that men were detailed for that business. Kane had nothing to do .with that duty. Must an employé working in the dark take notice of what he might have seen the day before in the daytime if he had been on the ground?- Must he know and remember the condition of every frog in all the yards, whether they are in order or not? We cannot think there is any such presumption that the plaintiff must have known the condition of the frog and the danger. That was a question of fact, to be fairly submitted to the jury on the evidence. The eighth request, which was taken bodily from Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391, was as follows: “If you find that the ‘wing’ of the frog in which Kane’s foot was caught had no blocking, and at the time in question railroad companies used frogs with and without blocking in the wings in railroad yards, and that it was questionable which was safest or most suitable for such business, then the use of a frog with unblocked wings was not negligence, and the plaintiff is not entitled to recover upon the first count of his declaration.” But the court refused to give said instruction, to which action of the court in refusing to give said instruction to the jury the defendant, by his counsel, then and there excepted. The Seley Case was reversed by the supreme court because this instruction was not given, but it does not follow from this that the same instruction was proper in the case at bar. In that case the railroad company had not undertaken to block their frogs, and the switchmen worked with knowledge of that fact. Here the railroad company, and the receiver after it, had adopted the plan of blocking, but the evidence was directed to show, and tends to show, that they had allowed it to become worn out and loose from want of-proper repair. We think this instruction was also properly refused. But there are others of a more doubtful character. Those numbered 6, 7, 10, 11, and 16 are of this character. These may be prima facie and technically correct, but, on the other hand, without any qualification; they might prove to be misleading to a jury. As it is not necessary, we do not now determine whether it was error to refuse them, but only wish to call attention to their doubtful character in case there should be another trial of the case. The attorney who drew those instructions evidently intended to hew as close [261] í o the line as was possible, so that, whether given or not, his client' would be the gainer, and the supposition is that he succeeded very admirably. Instruction numbered 12, intended to cover one phase of the case not presented by the general charge of the court, was as follows: “If you find from the evidence that the switch engine with which Kane was working was so leaky and defective that the escaping steam obscured tho view of the engineer, so that he was unable to seo tho signals given by tho switching crew, yet if you further And. that when the ‘stop’ signal was. given by Kane, and repeated to the engineer, the approaching cars were so close to Kano that they could not have been stopped in time to save him from being run over, oven if the signal had been seen by the engineer as soon as it was given, then you are instructed that such defective condition of the engine was not the proximate canse of Kane’s injuries, and that, in determining whether or not the defendant was guilty of negligence, you must not’ lake into consideration the condition of the switch engine or any of the proof introduced on that question.” We think this instruction should have been given, and that it was error to refuse to give it. The witness Connors, as shown in the statement of the case, gives the condition of the engine as being so defective as to interfere with the work. But he does not say that the signals were not received by the engineer, or that they were not obeyed. The evidence tends to show that Kane’s signal was given at a time when it would have been quite impossible to have stopped the train in time to have prevented the accident. Kane gave the stop signal either just as he stepped in between the cars or after he was caught. He gave it but once, and immediately after giving it he was run over. Bo that, upon this theory, if the stop signal had not been answered at all, that would not have caused the accident, and so could not have been the proximate cause. This instruction was evidently intended to present this aspect of the case for the finding of the jury, and, as there was nothing in the general charge presenting the same question, it should have been given to the jury. For. similar reasons we think the instruction numbered 16 should also have been given. That was as follows: “liven if you should find that the defendant’s switch engine, at the time of the accident to Kane, leaked steam so badly that the engineer was unable' to see the signals given by the yard men, and that the accident to Kane was caused by such defective condition of the engine, yet if you further And that the engine was not leaking steam wnen it was turned into the roundhouse, at 7 p. m. on the day of the a.ccident, by Schuler, tho engineer who had used it daring sueli day, and that the defects and leaks arose after the engine had been taken over by Kane’s crew, and that such crew continued working with said engine in spite of its leaky condition, and neither returned it to the roundhouse nor‘reported the defects in it to their superiors, or the officials who had charge of the repairs of such engine, then the plaintiff cannot recover under the second count of his declaration.” Kane’s crew began work at 7 o’clock. According to Connors’ testimony, tbe engine bad been leaking steam badly for several days. Engineer Schuler, however, who had worked with the engine all that same day from 7 a. m. to 7 p. m., testified that it was not leaking steam when he turned it over to Donahue’s crew at 7 p. m. This left it as a disputed question on the testimony whether the de [262] fective condition of the engine arose after Donahue’s and Connors’ crew took it that evening. If the jury should find that the engine was in good condition when Donahue and the plaintiff began work with it at 7 p. m., that would have a material and decisive bearing upon the question of negligence on the part of the receiver. It would hardly be reasonable to suppose, if the engine had been in good condition all day until turned over to the plaintiff’s crew, that the receiver could have had notice of its bad condition on that evening, so as to put him in fault for not repairing. This phase of the case was in no manner submitted to the jury by the general charge, and we think it was error for the court to refuse this instruction. Judgment is reversed, and the case remanded, with instructions to grant a new trial.