Northern Pac. Ry. Co. v. Tynan

HAWLEY, District Judge, after making the foregoing statement, delivered the opinion of the court. This action was brought by the administrator of the estate of John Tynan, deceased, under the provisions of the Revised Statutes of Idaho of 1887 (section 4100), to recover damages for the death of John Tynan, which occurred while he was employed as a brakeman by the railway company, and engaged in attempting to couple two of its cars. The coupler on one of the cars was a Miller hook, and the coupler on the other was a skeleton drawbar. It is alleged in the amended complaint that both couplers were old, and not adapted to each other or fit for use; that they were faulty in construction, out of repair, and did not couple automatically by impact; that there were no bumpers or deadwoods or other contrivance on the end of the cars to prevent the platforms on each car coming together in case the couplers passed each other in attempting to effect a coupling; that the Miller hook was not blocked, adjusted, or fixed so as to prevent or reduce the lateral motion thereof in an attempt to couple it with a skeleton drawbar; that' the railway company failed to warn the deceased of the faulty condition and character of the coupler, and of the danger that would accompany the act of making the coupling. The ’answer denies these allegations of the complaint, and, for affirmative defense, alleges that when the deceased applied to it for employment. he was furnished with a book of rules for the guidance of its employés, and that rule 25 provided that, before making a coupling, employés should take time to examine and ascertain the style and condition of the coupling to be made, and notified them that couplings cannot be uniform in style, size, or strength; that the deceased at the time of his employment represented that he had nine years’ experience in the railroad service, and promised that he would comply with the rules and regulations of the company, and would discharge the duties of his employment, and assume the risks thereof; that the deceased was guilty of neglect in making the coupling from the inside instead of the outside of the curve; that the deceased was guilty of negligence in making the coupling by placing the link in the skeleton drawbar instead of in the Miller hook; that the cars were used solely upon the Burke Branch, within the state of Idaho, and were not used in interstate commerce. Upon these issues the cause was tried before a jury, resulting in a verdict and judgment in favor of the defendant in error. The principal error assigned is that the court erred in refusing to give the following instruction: “I instruct you, gentlemen of the jury, that it will be your duty, under the evidence in this case, and the law governing the same, to return a verdict for the defendant, and I hereby so direct you to do.” A careful reading of the entire testimony contained in the record, a portion of which is embodied in the foregoing statement of facts, has ■ convinced us that the court did not err in refusing to give this instruction. On March 2, 1893, congress passed “An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes.” 27 Stat. 531 [U. S. [292] Comp. St. 1901, p. 3174]. This act has no' special bearing on this case, except in so far as it suggests the reasons that led to its adoption. It is wholly immaterial whether the railway company was or was not engaged in the use of the cars in question in the business of interstate commerce, and we shall not discuss that question. Prior to the passage of this act there had been numerous decisions rendered by the courts of this country wherein it was held that the railroad companies were guilty of negligence in using the Miller coupler in connection with the ordinary link and pin drawbars. Russell v. Railway Co., 32 Minn. 230, 233, 20 N. W. 147; Hungerford v. Railway Co., 41 Minn. 444, 43 N. W. 324; Railway Co. v. Garrett, 73 Tex. 262, 13 S. W. 62, 15 Am. St. Rep. 781; Martin v. Railway Co., 94 Cal. 326, 329, 29 Pac. 645; Southern Pac. Co. v. Burke, 9 C. C. A. 229, 60 Fed. 704; Smith v. Railway Co., 72 Hun, 545, 25 N. Y. Supp. 638. These cases are all directly in point in favor of the ruling of the court below. But the present case is much stronger in its facts than in any of the cases cited, in this: that in the present case it is shown that there was no blocking, and that the couplings on each of the cars were old and-particularly dangerous, even of their kind. The facts in the case of Railway Co. v. Archibald, 170 U. S. 665, 666, 18 Sup. Ct. 777, 42 L. Ed. 1188, closely resemble the facts in this case. It was there held that it is the duty of a railroad company to use reasonable care to see that the cars employed on its road, both those which it owns and those which it receives from other roads, are in good order and fit for the purposes for which they are intended, and this duty it owes to its employés as well as to the public; that an employé of a railroad company has a right to rely upon this duty being performed, and, while in entering the employment he assumes the ordinary risks incident to the business, he does not assume the risk arising from his employer’s neglect to perform the duties owing to him with respect to the appliances furnished. In the light of the testimony and of these decisions (many others might be cited to the same effect), the contention of the plaintiff in error that it had used ordinary and reasonable care in procuring and using proper and safe appliances for the coupling of its cars, and that its employé John Tynan, deceased," had assumed all the risks, and was himself guilty of contributory negligence, does not specially commend itself to the favorable consideration of this court. Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150, and Southern Pac. Co. v. Seley, 152 U. S. 145, 154, 14 Sup. Ct. 530, 38 L. Ed. 391, upon which the plaintiff in error relies, are readily distinguishable in their facts from the case at bar. The party injured had in the one case seen and coupled the cars there used, and in the other well knew of the dangerous appliances, without complaining of their use. In neither case was ‘it pretended that the appliances were out of repair, or in a defective condition, old, or unfit for use. Every case depends upon its own peculiar facts. The burden of proving contributory negligence on the part of the employé is always cast upon the railroad company, and the general rule is that it must not only appear that the employé was negligent, but it must also be shown that his negligence contributed to the injury. Coasting Co. v. Tolson, 139 U. S. 551, 557, 11 Sup. Ct. 653, [293] 35 L. Ed. 270, and authorities there cited; Railway Co. v. Volk, 151 U. S. 73, 77, 14 Sup. Ct. 239, 38 L. Ed. 78. Considerable stress is laid by the plaintiff in error upon the fact that the deceased was -negligent in attempting to make the coupling from the inside of the curve. It is always easy to say that the injury which occurred might not have happened if the injured party had been on the other side or had used other methods in trying to make the coupling. But the question to be determined is whether or not he was guilty of negligence in attempting to make the coupling at the place, in the manner and under the circumstances shown by the testimony. There was testimony in this case tending to show that the coupling could have been made, while the cars were on the curve, with as little danger on the inside as on the outside. The reason why it was attempted oh the inside is shown by the existence of obstructions which prevented the deceased from signaling the engineer on that side when the coupling was made, which was a part of his duty. In Bucklew v. Railway Co., 64 Iowa, 603, 609, 21 N. W. 103, the court said: “The engineer occupies one side of the locomotive, and. the fireman the other. The usual position of an employé desiring to make a signal for the purpose of controlling the movements of a train, when not on a curve, is on the engineer’s side. In the present case the plaintiff was on the fireman’s side when he gave the signal to stop the train. It is claimed the plaintiff cannot recover because he was not in his proper place. But there was evidence tending to show that, immediately prior to the time the signal was given, the train passed over a curve in the track, and that a signal given while the train was so passing from the engineer’s side could not have been seen by him. Now, conceding that the train had passed a short distance beyond the curve, we cannot say that the plaintiff was negligent in not more promptly passing to the other side of the train before giving the signal.” But in any event the question of contributory negligence under the testimony, including rule 25 of the railway company, was one of fact, for the jury to determine. The law is well settled that no case should ever be withdrawn from the jury unless the conclusion necessarily follows, as a matter of law, that no recovery could be had upon any view which can properly be taken of the facts which the evidence tends to establish. Railroad Co. v. McDade, 135 U. S. 554, 571, 10 Sup. Ct. 1044, 34 L. Ed. 235; Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485, and authorities there cited; Railway Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct. 905, 36 L. Ed. 829; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 VSup. Ct. 140, 37 L. Ed. 1107. The other errors assigned relate to the refusal of the court to give instructions to the jury as requested by the railway company. We shall not review these instructions, because it would be impossible, in the absence of the whole charge, to decide whether or not the court erred in refusing to give any of the requested instructions. The record does not contain the entire charge of the court to the jury. It does show that the railway company took exceptions to two points that were contained in the charge, and that upon both of these points the exceptions of the railway company were allowed by the court. For aught that appears from the record, the court, of its own motion, may have properly instructed the jury upon all the points sought to be raised by the assignments of error. When the entire charge is not [294] given in the record, it is the duty of the appellate courts to presume that the requested instructions were refused because substantially given in the general charge. Scaife v. Land Co., 33 C. C. A. 47, 90 Fed. 238, 246; Case v. Hall, 36 C. C. A. 259, 94 Fed. 300, 302; Myers v. Sternheim, 38 C. C. A. 345, 97 Fed. 625; Railway Co. v. Wineland, 42 C. C. A. 588, 102 Fed. 673, 676; Insurance Co. v. Payne, 45 C. C. A. 193, 105 Fed. 172, 176; Reagan v. Aiken, 138 U. S. 109, 113, 11 Sup. Ct. 283, 34 L. Ed. 892; Andrews v. U. S., 162 U. S. 420, 424, 16 Sup. Ct. 798, 40 L. Ed. 1023. In Myers v. Sternheim, supra, this court said: “The only other point relied upon by the plaintiff in error arose out of exceptions to the charge of the court, but a reference to the record shows affirmatively that the plaintiff in error has brought up only a part of the court’s charge, and there is nothing to indicate that the omitted portion had no bearing upon the point made. Under such circumstances, we would not be justified in reversing the judgment, even if, in the portion of the charge brought here, error appeared, since, in the portions of the charge omitted, the error, if any, may have been corrected.” The judgment of the circuit court is affirmed, with interest and costs.