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Commentaries on the law of negligence in all relations online

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401; Toledo ftc. R. Co. v. Black, 88
111. 112 (the "deadwoods" and
"drawbars" being proved to be as
good as any in common use) ; Chi-
cago ftc. R. Co. v. Wagner, 17 Ind.
App. 22; s. c. 45 N. E. Rep. 76, 1121
(aprons projecting twelve inches
from ends of flat-cars which an in-
experienced brakeman attempts to
couple, leaving only an inch of
space between them when the cars
are shoved together, where they are
in plain view, clearly to be seen, he
has abundant opportunity to see
them, his attention is directed to

742



them, and he is warned to keep
from between them) ; Muldowney v.
Illinois ftc. R. Co., 39 Iowa 615;
Michigan ftc. R. Co. v. Smithson, 45
Mich. 212; s. c. 7 N. W. Rep. 791;
Brewer v. Flint ftc. R. Co., 56 Mich.
620; Dysinger v. Cincinnati ftc. R.
Co., 93 Mich. 646; s. c. 53 N. W.
Rep. 825 (assumes risk of having
his arm caught between two dead-
woods while he is between two cars
attempting to draw a coupling-pin) ;
Puffer v. Chicago ftc. R. Co., 65
Minn. 350; McLaren v. Williston, 48
Minn. 299; Hannigan v. Lehigh ftc.
R. Co., 157 N. Y. 244; s. c. 12 Am.
ft Eng. R. Cas. (N. S.) 605; 51 N.
B. Rep. 992; rev'g s. c. 91 Hun
(N. Y.) 300; 71 N. Y. St. Rep. 61;
36 N. Y. Supp. 293; Renninger v.
New York ftc. R. Co., 11 App. Div.
(N. Y.) 565; Arnold v. Delaware
ftc. Canal Co., 125 N. Y. 15 (brake-
man injured while coupling cars in
order to place them on repair-
matter v. Illinois ftc. R. Co., 69
Miss. 642.

■Toledo ftc. R. Co. v. Black, 88
111. 112 (the "deadwoods" and
"drawbars" being proved to be as
good as any in common use).



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ACCEPTING THE RISKS OP RAILWAY SERVICE. [2d Ed.

the servant include, of course, the risk of injuries visited upon him
without negligence, but from mere accidents or casualties, while en-
gaged in coupling or uncoupling cars. 4

§ 4719. Risks of Injuries from Coupling or Uncoupling Cars of
Different Construction, or Different Height, or having Different Coup-
ling-Appliances. — As a general rule, a railway brakeman; or other rail-
way servant, a part of whose duty it is to couple or uncouple cars, as-
sumes the increased risk arising from the fact that the cars may be
of different construction ; 5 or that their drawheads may be of differ-
ent makes or of different height; 6 or that their coupling-appliances
may be of different patterns, some of them having double deadwoods
or double buffers, while others have not ; 7 or that some of the cars may
have coupling-appliances different from those in ordinary use, the
difference being open and manifest to observation ; 8 or that the coup-
ling-appliances of a car may be out of repair or defective, 9 so that its
drawhead has become lower than it should be, the defect being dis-
coverable by the exercise of ordinary care ; 10 or that one of the cars to
be coupled together may be lower than the other, where the brakeman
knows this fact; 11 or, in case of cars received from other roads, — es-
pecially where there is a constitutional mandate requiring railroad
companies to receive and haul cars of other companies, — that a car
so received may have couplings of a different kind or pattern from
the cars used upon the road upon which the switchman is employed ; 12
always assuming that the defect or the difference of construction is
not latent or concealed, 18 but is open to the observation of the brake-
man or other trainman, and discoverable by him by the exercise of'
reasonable care for his own safety, under principles already stated. 14

4 Viets v. Toledo ftc. R. Co., 55 Fed. Rep. 145; s. c. 30 U. S. App.

Mich. 120. 561; 18 C. C. A. 9.

•Hodge v. Kimball, 4* C. C. A. "St. Louis ftc. R. Co. v. Higgins,

193; a. c. 104 Fed: Rep. 745. 44 Ark. 293.

• Henry v. Bond, 34 Fed. Rep. 101. M Thomas v. Missouri ftc. R. Co.,

T Louisville ftc. R. Co. v. Boland, 109 Mo. 187; s. c. 18 S. W. Rep. 980.

96 Ala. 626; s. c. 18 L. R. A. 260; "For the rule where the injury

53 Am. ft Eng. R. Cas. 169; 11 is due to a defect which is not ob-

South. Rep. 667. vious, — see Louisville &c. R. Co. v.

"Boland v. Louisville ftc. R. Co., .Howell, 147 Ind. 266; Chesapeake

106 Ala. 641; s. c. 18 South. Rep. 99. ftc. R. Co. v. Lash (Va.), 3 Am. ft

"Elgin ftc. R. Co. v. Eselin, 68 111. Eng. R. Cas. (N. S.) 569; s. c. 24

App. 96 (assumes risk only where S. E. Rep. 385 (no off. rep.) ; Sabine

he is negligent in not knowing of ftc. R. Co. v. Ewing, 7 Tex. Civ.

defects); Fordyce v. Yarb rough, 1 App. 8; Missouri ftc. R. Co. v. Mur-

Tex. Civ. App. 260; s. c. 21 S. W. phy, 59 Kan. 774; s. c. 52 Pac. Rep.

Rep. 421 (assumes risk of such de- 863.

fects as are reasonably open to his u Ante, § 4640, et seq.; Kohn v.

ordinary inspection). McNulta, 147 U. S. 238; s. c. 37 L.

10 Texas ftc. R. Co. v. Rhodes, 71 ed. 150; 13 Sup. Ct Rep. 298;

743



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4 Thomp. Neg.] assumption of risk by the servant.

§4720. Isolated Decisions Exonerating the Brakemen from the
Assumption of the Risk in such Cases. — Isolated decisions 15 exoner-
ating the brakemen or other trainmen from the assumption of such
risks have been found, and will be here noted. One holds that a brake-
man is not, as a matter of law, guilty of negligence in failing to dis-
cover that the drawbars of two cars which he is required to couple
are of different height, where, before making the coupling, his duties



Woodworth v. St Paul ftc. R. Co.,
18 Fed. Rep. 282; Texas Ac. R. Co.
v. Rhodes, 30 U. S. App. 561; s. c.
71 Fed. Rep. 145; 18 C. C. A. 9;
Louisville Ac. R. Co. v. Boland, 96
Ala. 626; a. c. 18 L. R. A. 260;
Boland v. Louisville ftc. R. Co., 106
Ala. 641; St. Louis ftc. R. Co. v.
Higgins, 44 Ark. 293; Holmes v.
Southern Pac. Co., 120 Cal. 357; s.
c. 52 Pac. Rep. 652 (drawheads of
unequal height); Murphy v. Lake
Shore ftc. R, Co., 67 111. App. 527;
Van Winkle v. Chicago ftc. R. Co.,
93 Iowa 509; Coffman v. Chicago ftc.
R. Co., 90 Iowa 462; Box v. Chicago
ftc. R. Co., 107 Iowa 660; s. c. 78
N. W. Rep. 694 (drawbars of dif-
ferent make from ordinary im-
proved bars); Ellsbury v. New
York ftc. R. Co., 172 Mass. 130; Fort
Wayne ftc. R. Co. v. Gildersleeve,
33 Mich. 133; McLaren v. Williston,
48 Minn. 299; s. c. 51 N. W. Rep.
373 (logging-train, low cars, draw-
bars of cars much lower than that
of the engine) ; Hulett v. St. Louis
ftc. R. Co., 67 Mo. 239; Thomas v.
Missouri Pacific R. Co., 109 Mo. 187
(risk assumed if cars come to
switchman in good condition, no
matter how peculiar their couplings
are); Moore v. Kansas City ftc. R.
£Jo., 146 Mo. 572 (drawheads of un-
equal height, — switchman guilty of
negligence in attempting to force
the link of the higher drawhead
down to the lower one as the cars
came together) ; Chicago ftc. R. Co.
v. Curtis, 51 Neb. 442; s. c. 71 N.
W. Rep. 42 (brakeman on a road
whose cars are equipped with single
deadwoods assumes the risk in at-
tempting to couple a car of another
company equipped with double
deadwoods) ; Cleary v. Long Island
R. Co., 66 N. Y. Supp. 568; s. c. 54
App. Div. (N. Y.) 284 (drawheads
of unequal height and one with a
lateral movement); Pittsburg ftc.
R. Co. v. Henly, '48 Ohio St. 608;
s. c. 15 L. R. A. 384; 11 Rail, ft

744



Corp. L. J. 129; 29 N. B. Rep. 575
(couplings of different types);
Simms v. South Carolina R. Co., 26
S. C. 490; s. c. 2 S. E. Rep. 486 (al-
though some of the cars may be of
an old pattern and. so constructed^
that an attempt to couple them may
be exceedingly dangerous); Gulf
ftc. R. Co. v. Abbott (Tex Civ.
App.), 24 S. W. Rep. 299 (no off.
rep.) (evidence that the drawhead
of one of the cars was three inches
higher than that of the other does
not entitle plaintiff to a verdict,
where the testimony of njne experi-
enced witnesses shows that such
differences are common in the serv-
ice, and occasion no extra hazard to
employes); Norfolk ftc. R. Co. v.
McDonald, 88 Va. 352; s. c. 15 Va.
L. J. 699; 13 S. E. Rep. 706 (mis-
matched couplings, and especially
where they are arranged by the
brakeman in a peculiarly dangerous
manner) ; McDonald v. Norfolk ftc.
R. Co., 95 Va. 98; s. c. 27 S. E. Rep.
821; 8 Am. ft Eng. R. Cas. (N. S.)
552 (mismatched couplings, in the
absence of reliance on a promise
of the company to remove the dan-
ger) ; Norfolk &c. R. Co. v. Em-
mert, 83 Va. 640; Norfolk &c. R. Co.
v. Brown, 91 Va. 668; Kelly v. Ab-
bot, 63 Wis. 307; s. c. 53 Am. Rep.
292 (couplers of different height
which was apparent). It Is even
held that a railroad employe 1 as-
sumes the risk of coupling cars
while an iron rail is projecting
from one of the cars, to his knowl-
edge, although the danger there-
from is increased by an inequality
in the height of the two cars to be
coupled, of which he has no knowl-
edge at the time: Ely v. San An-
tonio ftc. R. Co., 15 Tex. Civ. App.
511; s. c. 40 S. W. Rep. 174.

u Such as Goodrich v. New York
ftc. R. Co., 116 N. Y. 398; s. c. 5 L.
R. A. 750; Thompson v. Missouri ftc.
R. Co., £1 Neb. 527; s. c. 71 N. W.
Rep. 61.



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ACCEPTING THE BISKS OP RAILWAY SERVICE. [2d Ed.

require him to open and shut switches, to procure a link and pin,
and then to overtake the moving portion of the train and to adjust
the link and pin in it. ie Another holds ijiat a brakeman does not,
as matter of law, assume the risk of coupling a freight-car equipped
with link-and-pin couplers to a coach equipped with a Miller hook,
which permits the coupling-bars to slip by each other, leaving a space
of only about a foot between the ends of the cars, where there is on
the freight-car a bolt projecting several inches from the end of the car
and beyond the nut, and he is not familiar with the construction of
such car with reference to the bolt. 17 Where a railroad company re-
ceived from another road a train of tourists' sletpers having couplers
which were so mismatched that they were liable to slip past each other
and let the platforms come together when they were being coupled, it
was held that a freight-brakeman who was required to brake on such
train, and who appeared to be wholly unfamiliar with the style of
couplers used, which were not ordinarily used on freight-trains, did
not assume the risk of being crushed through their use while making
a coupling, where he was not warned of the hazard. 18 Still another
case held that where the evidence showed a continued use by the differ-
ent railroad companies of a defective and dangerous car, an instruc-
tion that the plaintiff, who was suing for an injury proceeding from
that source, was justified in going in to uncouple the car, under the
conductor's orders, even though he knew of its defective condition,
unless the danger was so glaring that no prudent person would have
attempted it under the existing conditions, — was properly given. 19
There are also decisions which exonerate the brakeman from making
an inspection of the coupling-appliances before proceeding to use
them ; 20 although it is conceded that he is bound to use such care and
caution as a reasonably prudent man would use under like circum-
stances, 21 and that he is negligent if the coupling-appliances contain
defects of such a nature that he ought to have seen. them in time to
have avoided being injured by them. 22

"Ohio &c. R. Co. v. Wangelin, 43 12 Misc. (N. Y.) 408; s. c. 33 N. Y.

111. App. 324. Supp. 685; 67 N. Y. St. Rep. 408

17 Thompson v. Missouri Ac. R. (car sent to repair-yard, repaired

Co., 51 Neb. 527; s. c. 71 N. W. and retained to ordinary track) ;

Rep. 61. Galveston Ac. R. Co. v. Briggs, 4

"Southern Pac. Co. v. Winton, 27 Tex. Civ. App. 515; s. c. 30 S. W.

Tex. Civ. App. 503; s. c. 66 S. W. Rep. 933; Texas &c R. Co. v. King,

Rep. 477. 14 Tex. Civ. App. 290; s. c. 37 S. W.

w Harney v. Missouri Pac. R. Co., Rep. 34.

80 Mo. App. 667; s. c. 2 Mo. App. » Galveston &c. R. Co. v. Briggs,

Repr. 675. See also, Laporte v. Cook, 4 Tex. Civ. App. 515; s. c. 30 S. W.

21 R. I. 158; Norfolk &c. R. Co. v. Rep. 933.

Ampey, 93 Va. 108; s. c. 25 S. E. » Texas &c. R. Co. v. King, 14 Tex.

Rep. 226. Civ. App. 290; s. c. 37 S. W. Rep. 34.



* Jennings v. New York &c. R. Co.,



745

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4 Thomp. Neg.] assumption of risk by the servant.

§ 4721. Risk of Injury in Coupling or Uncoupling Can from the
Hanner in which the Cars are Loaded. — In the case of cars loaded
with stone we have two seemingly conflicting decisions, one to the
effect that where a brakeman on a freight-train has the same oppor-
tunity of knowing the manner in which certain cars have been loaded
with stone as any other employ6 of the company has, he assumes any
risk which may arise from the ^manner in which such cars have been
loaded, and cannot recover damages for an injury proceeding from
this source. 28 The other is to the effect that the risk arising from the
want of stakes or cleats on a car loaded with stone, which is to be
coupled to another car, is not so obvious as to be deemed a risk in-
cident to the employment which the servant accepts as matter of
law. 24 A most frequent source of injury to employes engaged in
coupling and uncoupling cars, growing out of the manner in which
the cars have been loaded, arises in cases where they have been so
loaded with timbers or with rails that the timbers or rails project
over the ends of the cars. Where the servant injured from these pro-
jecting timbers or rails while attempting to make a coupling or un-
coupling understands the danger, he cannot, according to the weight
of authority, recover damages for an injury proceeding therefrom,
the reason being that he has accepted the risk, 25 — as where cars loaded



"Toledo Ac. R. Co. v. Beard, 20
Ohio C. C. 681; s. c. 11 Ohio C. D.
406.

* Austin v. Fitchburg R. Co., 172
Mass. 484; 8. c. 52 N. E. Rep. 527.

"Day v. Toledo &c. R. Co., 42
Mich. 523 (owing to his stooping
position, his fingers were caught
and injured in the coupling-link) ;
Jackson v. Missouri Ac. R. Co., 104
Mo. 448; Boyle v. New York &c. R.
Co., 151 Mass. 102; s. c. 23 N. E.
Rep. 827; Atchispn &c. R. Co. v.
Plunkett, 25 Kan. 188 (railroad com-
pany not chargeable with negligence
In permitting an experienced hand
to couple cars so loaded, in broad
daylight, though during a rain-
storm) ; Jackson v. Missouri &c. R.
Co., 104 Mo. 448; s. c. 14 S.^V. Rep.
54 (although the brakeman, riding
on the brakebeam of the tender
while the engine was backing along
a side-track to get some box-cars,
was struck and killed by rails pro-
jecting over the ends of a flat-car,
which could not be seen because of
the darkness) ; Nash v. Chicago &c.
R. Co., 95 Wis. 327; s. c. 70 N. W.
Rep. 293 (especially where the at-
tention of the brakeman has been

746



specially called to a printed notice
warning brakemen of the danger of
coupling cars thus loaded); Mcin-
tosh v. Missouri &c. R. Co., 58 Mo.
App. 281 (where it is customary for
rails so to project, brakemen must
be held to the exercise of ordinary
care in performing such coupling) ;
Tucker v. Northern Terminal Co.,
41 Or. 82; s. c. 68 Pac. Rep. 426; 11
Am. Neg. Rep. 629 (injury while
coupling a flat-car kicked toward a
stationary car loaded with project-
ing rails — view of cars was unob-
structed, and evidence tended to
show that deceased had seen the
danger and stooped to avoid it);
Mexican &c. R. Co. v. Shean (Tex.),
18 S. W. Rep. 151 (no off. rep.)
(knowing the dangerous manner in
which the car is loaded). Compare
the following decisions not quite in
accord with the doctrine thus stat-
ed: Northern &c. R. Co. v. Everett,
152 U. S. 107; s. c. 38 L. ed. 373
(switchman making coupling not
imputable with negligence as matter
of law in not discovering the pro-
jecting timber); Atchison ftc. R.
Co. v. Wells, 56 Kan. 222 (the same
doctrine); Illinois &c. R. Co. v.



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ACCEPTING THE RISKS OP RAILWAY SERVICE. [2d Ed.

in this manner are frequently inserted in trains upon which the
brakeman is employed. 26 One case deals with the question on the
footing of contributory negligence of the servant, and holds that it is
not such negligence, as matter of law, that he did not observe the pro-
jecting timbers on one of the cars which he undertook to couple, while
he was in the discharge of his duty and while his attention was di-
rected to the work in which he was engaged. 27 Another holds that
mere knowledge on the part of a brakeman of a custom of the com-
pany to load cars with machinery without providing footboards to be
used by the trainmen in passing over them, does not create an assump-
tion of the risk arising therefrom, where it is not usual to place cars
thus loaded in a position in the train where brakemen are required to
.pass over them. 28

§ 4722. Where the Brakemen or other Trainmen Proceed to Couple
or Uncouple Can in a Manner Prohibited by Known Rules of the
Company. — If the brakeman or other trainman proceeds to couple or
to uncouple the cars in a manner prohibited by a known rule t>f the
company, and, in consequence of so doing, is killed or injured, no re-
covery can be had for his death or injury ; and it is immaterial whether
the conclusion is put upon his contributory negligence or upon his
having voluntarily accepted the risk by violating a known rule of his
master intended to promote his safety: — As where, in violation of a
rule, he goes between moving cars to couple them; 29 or attempts to

Reardon, 56 111. App. 542; Reding- Ala. 158; s. c. 25 South. Rep. 853;

ton v. New York &c. R. Co., 84 Hun Cleveland &c. R. Co. v. Ullom, 20

(N. Y.) 231; s. c. 32 N. Y. Supp. Ohio C. C. 512; s. c. 11 Ohio C. D.

535. 321 (holding that the plaintiff may

" Jacksonville Ac. R. Co. v. Gal- show that the rule has not heen ob-

vin, 29 Fla. 636; s. c. 16 L. R. A. served for a long time, and that the

337; 11 South. Rep. 231. representatives of the company had

** Northern &c. R. Co. v. Everett, knowledge of it). Another court

152 U. S. 107; s. c. 38 L. ed. 373; 14 has held that a rule of a railroad

Sup. Ct. Rep. 474. company against going between

"Hosic v. Chicago &c. R. Co., 75 moving cars to uncouple them will
Iowa 683 ; s. c. 37 N. W. Rep. 963. In not prevent recovery by a servant
another case, timbers loaded upon for injuries received while violating
a car had shifted, and, in conse- the same, if its violation was sanc-
quence of this, had been reloaded ; tioned by a custom so universal and
but no means were adopted to pre- notorious that the company was pre-
vent them from shifting again. A sumed to have known of and rati-
railway employ^, while engaged in fled it: Fluhrer v. Lake Shore &c.
coupling cars, was struck by tim- R. Co., 124 Mich. 482; s. c. 83 N. W.
bers projecting from tne car, in Rep. 149. Another court has held
consequence of their shifting a sec- that a carefully prepared rule of a
ond time, and was killed. It was railroad company prohibiting brake-
held that the railway company was men from coupling or uncoupling
liable: Illinois Cent. R. Co. v. Rear- cars except with a stick, and declar-
don, 56 111. App. 542. ing that brakemen or others must

" Shorter v. Southern R. Co., 121 not go between the cars, under any



U7

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4 Thomp. Neg.] assumption of risk by the servant.

make a coupling while standing between two cars on the short side
of a curve, having ample time to observe that both drawheads are
shorter than usual, in the face of a rule of the company known to him,
requiring employes to take time to examine all drawheads before mak-
ing couplings ; 80 or where a brakeman is charged with notice of a rule
requiring him to inspect the links and drawheads before attempting
to make couplings, when an inspection would have revealed to him
the defective character of a link which parted, causing an injury to
him; 81 or where a conductor attempted to uncouple cars, it being no
part of his duty but a violation of the rules of the company, and there
being no pressing emergency requiring him so to act, in consequence
of which action he received an injury. 82

§4723. Failing to Use a Safety-Coupler, Coupling-Stick, etc. —
Contributory negligence, or an acceptance of the risk, will generally
be imputed to a railway servant who attempts to make a coupling
without using a stick provided by the company, the use of which is re-
quire^ by its rules, 88 unless the rule has been abandoned or waived, 84
or, in conformity with a principle already considered, 85 unless the
servant is commanded by his conductor or other superior to make the
coupling without using the stick; 86 or unless his failure to use a
safety-coupler in accordance with the rules of the company is not



circumstances, for the purpose of
coupling or uncoupling them or ad-
justing pins when an engine is
attached to such cars, — does not
apply to the case of a brake-
man stationed upon the footboard
of the pilot on the tender, where
the engine is not attached to any
car or train, and, while there,
attempting to draw the link from
the coupling-apparatus without
using a stick, while the engine and
tender are moving backward toward
a standing car for the purpose of
being coupled thereto: Richmond
6c. R. Co. v. Mitchell, 92 Ga. 77;
s. c. 18 S. E. Rep. 290. Another court
has held that a rule of a railroad
company prohibiting employes from
"entering between cars in motion"
is not violated by an employe's en-
tering between cars while at rest for
the purpose of uncoupling them,
and remaining between them for a
short distance after they are put in
motion: Galveston Ac. R. Co. v.
Pitts (Tex. Civ. App.), 42 S. W. Rep.
255 (no off. rep.).
"Bennett v. Northern 6c. R. Co.,

748



2 N. D. 112; s. c. 13 L. R. A. 466; 10
Rail. 6 Corp. L. J. 243; 49 N. W.
Rep. 408; 48 Am. 6 Eng. R. Cas.
182.

"Alabama 6c. R. Co. v. Carroll,
84 Fed. Rep. 772; s. c. 52 U. S. App.
442; 28 C. C. A. 207; 9 Am. 6 Eng.
R. Cas. (N. S.) 759.

" Kane v. Savannah 6c. R. Co., 85
Ga. 858; s. c. 11 S. E. Rep. 493.

"Richmond 6c. R. Co. v. Pan-
nill, 89 Va. 552.

•* Newport News 6c. R. Co. v.
Campbell, 15 Ky. L. Rep. 714; s. c.
25 S. W. Rep. 267 (no off. rep.);
Port Royal 6c. R. Co. v. Davis, 96
Ga. 292; Finley v. Richmond 6c. R.
Co., 59 Fed. Rep. 419.

85 Ante, § 4630.

M Mason v. Richmond 6c. R. Co.,
Ill N. C. 482; s. c. 18 L. R. A. 845;
and see also, Norfolk 6c. R. Co. v.
Ampey, 93 Va. 108; s. c. 2 Va. L.
Reg. 284; 25 S. E. Rep. 226 (or-
dered to make the coupling by hand
by a conductor, and he believed that
the coupling could be safely made
by taking extraordinary precau-
tions).



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ACCEPTING THE RISKS OP RAILWAY SERVICE. [2d Ed.

shown to have contributed to the accident, which proceeded from the
negligence of the company, in that it was using an engine known to be
defective. 87

§ 4724. Effect of the Brakeman being Ordered by the Condnctor to
Hake the Coupling or Uncoupling. — Following a line of doctrine
which seems to be well recognized in Missouri, it is held in that State
that, although a brakeman may know of the defective condition of a
car, yet he will be justified in attempting to uncouple it in obedience
to an order of the conductor, unless the danger of so doing is so glar-
ing that no prudent person would attempt the act under the existing
conditions. 88 It is also to be observed that the order of the conductor
may excuse the brakeman from making such an examination as the
law might otherwise require of him, to the end of promoting his own
safety, before attempting to couple cars in obedience to the order. 89

§ 4725. Assumption of Bisk of Injury Arising from Attempting to
Couple or Uncouple Can while in Motion. — There are decisions which
impute negligence to a railroad employe for attempting to couple or
uncouple cars while in motion ; but an examination of them will show
that they are generally qualified by special circumstances or considera-
tions : — As where the injury proceeded from a defect in the roadbed of
which the employe had knowledge; 40 or where it was apparent to the
employ^ that he could make the uncoupling without going between the
engine and the car as he did; 41 or where the employ 6 failed to use a
platform which might have been used, the use of which was obviously
the safer way. 42 But the better opinion is that there is no rule of law

"Wabash ftc. R. Co. v. Morgan, 111 N. C. 482; s. c. 53 Am. & Eng.
132 Ind. 430; s. c. 31 N. E. Rep. R. Cas. 183; 16 S. E. Rep. 698; 18
661; Richmond Ac. R. Co. v. Rudd, L. R. A. 845. One court holds that a



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 104 of 165)