Hunt v. Hurd

BUNN, District Judge, after making the foregoing statement of the case, delivered the opinion of the court. It is impossible to discover any rational or satisfactory ground upon which this verdict can be sustained. There was no evidence in the case that the switching of cars upon side tracks by a running switch is of itself dangerous or unlawful. It is not claimed to be the law that such a practice is unjustifiable, or constitutes negligence per se on the part of the railroad company. The truth is that it is the common practice in most or all of the railroad yards in the country. It is claimed in this case that a separate engine [686] could Rave been attached to these particular cars, and the cars drawn behind or shoved ahead of such engine with greater safety to employés and the public. That is quite possible. If an employé will not take heed to such a warning as was given Hurd in this case, —to get off the track and keep off, — he might be saved by the fury of an approaching engine, and the noise of a whistle and the ringing of a bell. But this does not furnish any solution to the question. Because the business might be done in some other and slower way, less dangerous, it does not follow that the method employed involves negligence. The real question is whether the method is the one in general use by other railroad companies, and is reason-bly safe. If it is, then it is not negligence of itself, and without regard to circumstances, to employ that method. 3 Elliott, R. R. par. 1162; Kelley v. Railroad Co., 53 Wis. 74, 9 N. W. 816; Schaible v. Railway Co., 97 Mich. 318, 56 N. W. 565, 21 L. R. A. 660. A railroad company has, say, a half dozen or more cars standing in its yards, which it wishes to place upon as many different side tracks. Instead of hitching a separate engine to each car, and taking the car where it is wanted, it attaches one engine to the entire train. When all is under motion the engine is suddenly slacked up. This slack is communicated from the engine through all the intermediate cars until it reaches the rear car. This enables the brakeman to draw the pin and detach that car just at a point before it reaches the first switch, which is drawn at the proper moment, allowing the detached car to go upon another track by the momentum received from the engine. The engine with the remaining cars proceed upon their way until another side track and switch are reached," when the same process is repeated, and so on until all the cars are deposited in their proper places. Where there are no public streets to be crossed, and the traveling public are not concerned, it cannot be said that such a method of moving cars is extrahazardous, or implies any .negligence on tlm part of the company. It facilitates business, and that is what the public want, although the danger may be somewhat increased over that of slower methods. It would, no doubt, be less dangerous to employés and to the public if all passenger trains should be run at a speed not exceeding 10 miles an hour, instead of from 30 to 60 miles an hour, and yet no one would venture the opinion that it should be held as negligence per se to run trains át the higher rate of speed. The business public demands it, notwithstanding the extra hazard. There is no doubt that under some circumstances it would be gross carelessness to shunt a train upon a side track, leaving it to run across, a grade crossing over a public street where footmen were constantly passing, without an engine and an engineer to control it. The cases cited from Illinois, and relied upon by the defendant in error, are, for the most part, cases of this kind, where the traveling public are interested, and where there are grade railroad crossings over public streets. But there are no such extraordinary circumstances in this case. Here the switching was done in the defendant’s yards, upon its own private grounds. It was done in the usual manner, in broad daylight. The deceased was an employé of the company. He had [687] worked in those yards several months, and had seen, and must have well known of, this practice of making flying switches. Hp was distinctly notified by his foreman to get off and keep off the track, as they were going to make a drop switch upon that track. All the other employes took heed to the warning, except Hurd. He paid enough attention to it to get off with the others until the engine and two attached cars passed, and then, forgetting or for some reason being totally oblivious of the approach of the shunted car, stepped upon the track, apparently to resume his work of fastening bolts. The other workmen, Jones and Grites, knew about the danger, and heeded it. Hurd knew just as much about it as they did, but was the only one who paid no attention to or failed to realize the danger. It is said that the jury are to judge of the circumstances, and draw their own inferences from facts. This is true, where there are circumstances and testimony from which inferences may properly be drawn. But the difficulty lies in the fact that there are no circumstances in evidence from which the inference of negligence on the part of the company, or of any employé of the company, can properly be drawn. The court, in its general charge, instructed the jury: •‘That they were to judge in the first place (for that is most important) whether this so-called running or flying switch vas such an operation of the road, or of the switch, or switching of cars, as was reasonably compatible with the safety of the parties employed to work there. If it was reasonably safe, then the party employing the deceased, perhaps, had complied with his undertaking; but if it was not a reasonably safe operation, so to speak, of the engine and ears,--of the switching process that was going on there, — then perhaps the defendant would be guilty.” This instruction and others of a similar import were objected to, and exception thereto taken by defendant’s counsel. We mention these things here only for the purpose of saying that it seems altogether probable, from these instructions and from the verdict, that the jury supposed they were authorized to say that if they found these flying switches to be dangerous, or more dangerous than other methods that might have been employed, in that case they should find the defendant company guilty of negligence. But this, as we have seen, cannot be the law. And apparently the jury must also have found that the contributory negligence of the deceased in going upon the track in front of a moving car after being warned by his foreman of the danger would not prevent a recovery, if the jury found this method of switching dangerous. The instructions, however, on the subject of contributory negligence were quite correct and full. It is true that there is evidence to show that the yard was within the corporate limits of a village of 1,000 or 1,200 inhabitants, and that 30 or 40 feet away was a public street crossing. But how can these facts change or influence the duty of the company to the employé Hurd? Hot at all. If he had been a traveler upon tbe public crossing, then the question in regard to the propriety of switching a car over the crossing without an engine attached would have some significance. , As we have seen, the charges of negligence in the declaration are [688] of a very general character. No specific negligence is alleged on the part of the engineer or brakeman or other employé in charge of the switching train. The charge is apparently one of negligence on the part of the company for operating cars in that way, as though it were negligence per se. And the question seems to have been left to the jury as a question of fact, though there are no circumstances in the case tending in any way to show negligence, unless it ^as the bare fact of switching cars by a flying switch, so that the jury were in reality left to determine the law as well as the fact. Counsel for defendant in error lay some stress upon the fact that the brakeman sent in charge of the shunted car was located on the rear end of the car, instead of the front. But he was where his brake was by which the car was controlled, and .he was not there for the purpose of giving warning. Other means were provided for that. But assume that the brakeman was negligent in not being in the right place. It is quite clear that the plaintiff cannot recover for the negligence of the brakeman or foreman or other employés in charge of the train. They were fellow workmen with the deceased. This is not a question of local law, as is claimed by counsel for the defendant in error, but is’one of general law, to be determined by a reference to all the authorities. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. And the decisions of the United States supreme court are controlling upon this question. Martin v. Railroad Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 944; Same v. Charless, 162 U. S. 359, 16 Sup. Ct. 848, 40 L. Ed. 999. These cases are quite conclusive of the case at bar, so far as any question of negligence on the part of the engineer or brakeman in charge of the train is • concerned, if any such negligence were charged or proven. But no such negligence is charged, and, if it were, there is no evidence tending to support the charge. The judgment of the circuit court is reversed, and the case remanded, with instructions to award a new trial.