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Commentaries on the law of negligence in all relations online

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ment of the train which took place through the tender of the engine
jumping the track at a place where the road-bed was in good condi-
tion, and being dragged along until it struck some rotten cross-ties,
breaking off the ends of them and spreading the rails, which caused
the train to become derailed, — the question of negligence being for
the jury, and the court taking the view that the fact that the derail-
ment of the tender was not due to the negligence of the company was
immaterial, if the train would not have been derailed but for the fact
of the cross-ties being rotten. 81 Railroad companies have been ex-
onerated from liability to their employes who have sustained injuries
through the derailment of the train, caused by the spreading of a rea-
sonably safe track by the passage of a train so immediately preceding

w St. Louis Bridge Co. v. Fellows, way, 67 111. App. 155; s. c. aff'd, 169

52 111. App. 504. The track may 111. 505.

have been sufficient for engines "Chicago Ac. R. Co. v. Eaton, 96

such as were in ordinary use when 111. App. 570; s. c. aff'd, 194 111. 441;

it was built; but the evidence tend- 62 N. B. Rep. 784.

ed to show that it was unsuitable " Texas ftc. R. Co. v. Magrlll, 15

for longer and heavier engines than Tex. Civ. App. 353 ; s. c. 40 S. W.

ordinary, such as the one in ques- Rep. 188.

tion: St Louis Bridge Co. v. Fel- "Wright v. Southern R. Co., 122

lows, supra. N. C. 959; s. c. 30 S. E. Rep. 348:

"Lake Shore Ac. R. Co. v. Con-


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4 Thomp. Neg.] duties and liabilities of the master.

the accident that the trackmen could not have notice of the defect
in the track; otherwise if the defect was the result of rotten and un-
safe ties, which would have been discovered by a reasonable inspec-
tion; 82 and through a derailment, caused by a sudden fall of rain
saturating the earth, already moist, so that the cross-ties sank on one
side under the weight of the engine, turning it over, where there had
been a recent inspection, not disclosing the danger, and three trains
had previously passed over it the same day. 8 *

§ 4266. Burden of Proof and Evidence of Negligence in Case of
Injuries from Derailments. — On this subject it has been "held that it
is the positive duty of every railroad company, imposed by law, to
provide and maintain a safe road-bed, and its failure to do so raises
a presumption of negligence. The burden of proving such a failure
of legal duty rests on the plaintiff, but when that fact is proved or
admitted, the burden of proving such facts as will excuse its failure
rests on the defendant. So, where the derailment of an engine re-
sulted in the death of the fireman, and it is admitted in the pleadings
that the derailment was owing to a misplaced rail, the burden is on
the defendant to show that the rail was not misplaced through its
negligence. 84 Here, as in other cases, the negligence of the defend-
ant may be proved by circumstances ; and it has been held that an in-
ference that a defect in a railroad-track arose from, or had not been
discovered or remedied owing to the negligence of the company or
of some employ^ entrusted by the company with the duty of seeing
that the track was in proper condition, may be drawn from the char-
acter of the defect. 85 Evidence on the part of the plaintiff tending

"Gulf Ac. R. Co. v. Pettis, 69 Tex. thereby: McClarney v. Chicago &c.
689; s. c. 7 S. W. Rep. 93. R. Co. f 80 Wis. 277; s. c. 48 Am. &
. "Binns v. Richmond &c. R. Co., Eng. R. Cas. 132; 49 N. W. Rep. 693.
88 Va. 891; s. c. 16 Va. L. J. 211; 14 "Marcom v. Raleigh &c. R. Co.,
S. E. Rep. 701. In the case of a 126 N. C. 200; s. c. 35 S. E. Rep.
derailment it has been ruled that 423; Wilkie v. Raleigh ftc. R. Co.,
the fact that railroad-ties were not 127 N. C. 203; s. c. 37 S. E. Rep. 204.
strong enough to Bupport an en- In the first of these cases the de-
gine when derailed is not evidence fendant proved to the satisfaction
of negligence, In respect to the en- of the jury that the rail was mis-
gineer, where it Is not claimed that placed through the malicious act of
they were not sufficiently strong to a trespasser, and that it was in no
support the engine and cars as long way negligent The plaintiff er-
as they remained on the rails: cepted to a charge to the above ef-
Ward v. Bonner, 80 Tex. 168; s. c. feet as to the burden. of proof!
15 S. W. Rep. 805. It has been held m Alabama Ac. R. Co. v. Bailey,
that a railway company was not 112 Ala. 167; s. c. 20 South. Rep.
liable for allowing ice and snow to 313 (brakeman injured by derail-
accumulate between its tracks, ment of train due to rotten cross-
where a subsequent derailment was ties),
not shown to have been caused


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to show that there was no defect in the car, but that there was a sharp
curve in the track, and that the car was derailed at the sharpest part
of the curve, where the rails were old, secondhand rails, of different
length, mashed and stringy, that the joints were low, that the ties
were loose, that the road was out of alignment, that the curve was a
very irregular curve, of about* twenty degrees, and that the track was
rough, — is sufficient evidence of negligence to sustain a verdict for
the plaintiff. 88 So, evidence that the accident occurred at a cattle-
guard at the end of a switch, ami was caused by the cattle-guard be-
ing low, and the timbers in it rotten, causing it to sink under the
weight of the engine, and the pilot to strike the guard-rail and move
the switch, — is sufficient to require the submission of the case to the
jury. 87 So, evidence that water had previously on several occasions
overflowed the track of a railroad company at a certain point, has
been held sufficient to justify a finding that the company, by fail-
ing to keep its track in proper condition, had neglected its duty to a
fireman upon one of its engines, whose death was caused by the sink-
ing of the rails at that point, caused by a washing out of the earth. 38
But it has been held that a railroad company is not liable to an en-
gineer for an injury caused by the breaking of a rail having no visible
defect, occasioned by frost. 89 Ignoring this case, the question should
be whether a railroad company ought not to have its road made with
rails heavy enough and strong enough not to break from the effect
of frost. In another case, a railroad company was held not liable for
injuries sustained by an employ6 by the sliding out or giving way of
the foundation on which an embankment rested, where it was made
by a different company forty years before the accident, and there was
no obvious defect in its construction, and there was no evidence from
which it could be inferred how it might or ought to have been dis-
covered by the defendant, and the cause of the accident was obscure. 40
Another case holds that where it is shown that a track-inspector and

"Peters v. McKay, 136 Cal. 73; accident itself demonstrates negli-

s. c. 68 Pac. Rep. 478. gence prima facie under the rule of

"Bach v. Iowa Ac. R. Co., 112 res ipsa loquitur, and that it was
Iowa 241; s. c. 83 N. W. Rep. 959 not for the plaintiff, but for the de-
letion by railway fireman Injured fendant, to show how the defect
by derailment of train). might or ought to have been dis-

" Stoher v. St. Louis &c. R. Co., covered. Under the excuse afforded

105 Mo. 192; s. c. 16 S. W. Rep. 591. them by such decisions as this, rail-

"Deylin v. Wabash &c. R. Co., 87 road companies are encouraged to

Mo. 545; s. c. 4 West Rep. 54. wait until some death-dealing acci-

" Norfolk Ac. R. Co. v. Pool, 100 dent demonstrates a defect in their

Va. 148; s. c. 4 Va. Sup. Ct. Rep. 42; track, without discovering it before-

40 S. E. Rep. 627. This decision ig- hand by the making of proper in-

nores the principle — in this relation spectlons.
so salutary and important — that the


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4 Thomp. Xeg.] duties and liabilities of the master.

his gang carefully examined and repaired a curve about two or three
weeks before an accident, an employ^ of the railroad company work-
ing upon an engine cannot recover for injuries received in a derailment
alleged to be due to a defect in the rails at that place, where no neg-
ligence is shown, or no defect in the rails, or incompetency on the
part of .the trackmen or negligence in the manner in which the work
was done. 41 Negligence on the part of a railroad company as to-
wards its employes cannot be predicated of the location of a switch
on a grade and curve in its track, when, with proper care, its road may
be operated as safely with the switch there as elsewhere; but if in
consequence of the switch being so located the danger to its employes
in the operation of the road is increased, it must exercise a corre-
spondingly increased degree of care at that point. 41a

§ 4267. Failure to Build a Bumper at the End of an Inclined
Track. — The writer states with the greatest confidence that, on prin-
ciple, the failure of a railroad company to build a bumper at the end
of an inclined track, and especially where the track ends at a consider-
able elevation above the ground, is negligence; but an unaccountable
decision is noted in the margin which seems to hold the contrary. 42

"Burrell v. Gowen, 134 Pa. St
527; s. c. 19 Atl. Rep. 678 (some
witnesses stated outer rail was
worn away % inch; others said %
inch; while other witnesses for
plaintiff said the curve was in good
condition. There Was also evidence
that one or more new rails were
laid at the place of the accident
shortly after it happened).

"a International &c. R. Co. v.
Johnson, 23 Tex. Civ. App. 160; s. c.
55 S. W. Rep. 772.

u In the case referred to it ap-
peared that the defendant operated
a railroad to carry clay from its
pits to its refining-works. The
track descended on a trestle about
thirteen feet high, with a grade for
three hundred feet of the distance
of about six feet. The trestle was
built by a contractor under the di-
rection of the superintendent. It
was not shown -that the superin-
tendent had complete supervision
of the work, with the right to select
and discharge workmen, and power
to procure machinery necessary to
perform the work. It was held that
the evidence failed to show the su-
perintendent was more than a fel-


low servant, and hence did not
charge defendant with liability for
an accident alleged to have been
caused In part by the absence of a
bumper at the end of the trestle, the
result of the negligence of such su-
perintendent: Maryland Clay Co.
v. Goodnow, 95 Md. 330; s. c. 51 Atl.
Rep. 292; Pearce, J., dissenting.
The contractor warned the superin-
tendent of the danger of not having
a bumper at the end of the trestle.
Plaintiff was unloading cars at the
end of the trestle, when a train of
five cars and an engine, only two
of the cars having brakes, and one
of these brakes being broken, ran
down the trestle and struck the cars
plaintiff was unloading, pushing one
car over the end of the trestle, and
causing one of the . stationary cars
to run over plaintiff, which could
not have happened had thqre been
a bumper. The court held that as
there were three other cars with
good brakes that might have been
used, the negligence in using cars
with defective brakes instead was
that of fellow servants: Maryland
Clay Co. v. Goodnow, supra.

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§ 4268. Objects Falling upon the Track : Snow-Slides, Gravel-Slides,
Palling Bock, Stick of Wood Falling from Tender. — A snow-slide
coming down upon a railroad-track forms a dangerous obstruction
different from a mere snowdrift, because the snow which comes down
is generally mingled with gravel and stones. It need not be said
that it is the duty of a section-foreman who has knowledge that such
obstruction has come upon the track to report it at once to the proper
officials of the road, and also to the conductor of an approaching train,
if he has an opportunity to do so; and that it is the duty of the com-
pany to make reasonable exertions to clear it away; and that for an
injury to a trainman for its negligence in failing so to do, it will be
liable in damages. 48 For the purpose of charging a railroad com-
pany with responsibility for negligence, it has been quite reason-
ably held that notice to its section-master of a rock dangerously
overhanging the track is notice to the company. 44 Evidence that fires
had been prevailing for several days upon a mountain-side, immedi-
ately above a railroad-track, for a distance of several miles in the im-
mediate vicinity of the place where an accident happened, and that
stones, sticks and logs were rolling down upon the track by reason of
the fires, and that this condition of affairs was known to the com-
pany, is sufficient to take the question to the jury whether it was not
negligent in failing to have track-walkers in that vicinity in order
to guard against accidents to trains passing over the track in the
night. 45

§ 4269. Tracks Dangerously Hear Together. — The duty of a rail-
way company towards its employes to so construct its tracks that they

• Fisher v. Oregon 6c. R. Co., 22 through the direct and immediate
Or. 533; s. c. 16 L. R. A. 519; 12 fault of the employes of the corn-
Rail. 6 Corp. L. J. 139; 30 Pac. Rep. pany. The plaintiff failed to show
425 (recovery for injuries to a con- that the stick of firewood fell either
ductor of a freight-train, caused by through improper loading or
the train running into the slide, through Improper handling by the
sustained, — the track foreman hav- fireman: Smith v. Louisiana 6c.
ing failed to report it, though he R. Co., 49 La. An. 1325; s. c. 22
had ample opportunity). South. Rep. 359. The decision is

44 Baltimore 6c. R. Co. v. McKen- plainly erroneous in that it ignores

zle, 81 Va. 71. the view that the presence of the

" Denver 6c. R. Co. v. Wilson, 12 stick of wood upon the track,
Colo. 20; s. c. 20 Pac. Rep. 340; 2 which it was the duty of the de-
Denv. Leg. N. 73 (recovery by fire- fendant to keep clear and safe,
man). It has been held that a demonstrates negligence prima
laborer on a work-train of a rail- facie, at least under the rule of res
road company cannot recover dam- ipsa loquitur, casting upon the de-
ages for an injury caused by fendant the burden of explaining
the derailment of one of its cars its presence consistently with the
by a' small stick of firewood conclusion of its own innocence,
which evidently fell from the ten- and making its negligence a ques-
der of a locomotive upon the track, tion for the Jury.

without showing that it was there


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4 Thomp. N"eg.] duties and liabilities of the master.

shall be reasonably safe, is violated where they are so near together
that an employ^ engaged in his duties on the side of the car is liable
to be 1 brought into contact with cars on the other track and killed or
injured. 4 * This assumes that the injured brakeman is ignorant of
the proximity of the cars on the other track and is not imputable with
contributory negligence. 47 This species of defect is frequently found
at places where the tracks near each other curve sharply, so that the
end of a car on the inside track in rounding the curve projects so
far beyond the track as to be brought dangerously close to a car on
the outside track. Here the danger would not be obvious to an
ordinary person unless his attention were particularly called thereto ;
he would not therefore be imputable with contributory negligence
because of a failure to know and appreciate the danger, though he
would be if he were injured w^iile riding on the side of the car un-
necessarily, and contrary to the rules. 48 The same defect is some-
times discovered in street-railroads, the cars of which have running-
boards along which the conductors are obliged to walk in collecting
fares. In such a case, if a conductor on one car .has not been warned
of the dangerous proximity of the other track at a particular point, in
consequence of which, while standing on the running-board in the
discharge of his duties, he is struck by a car passing thereon, — the
company will be liable for his injury. 49

§4270. Side-Tracks Dangerously Hear Main Track. — Actionable
negligence is imputable to a railway company where it so constructs

•Mohr v. Lehigh Valley R. Co., 55
App. Div. (N. Y.) 176; s. c. 66 N. Y.
Supp. 899; True v. Niagara Gorge
R. Co., 70 App. Div. (N. Y.) 383;
8. c. 76 N. Y. Supp. 216; Vorhees v.
Lake Shore Ac. R. Co., 193 Pa. St.
115; s. c. 44 Atl. Rep. 335.

« Vorhees v. Lake Shore Ac. R.
Co., 193 Pa. St. 115; s. c. 44 Atl.
Rep. 335 (brakeman injured while
descending a side-ladder to close a

"Mohr v. Lehigh Valley R. Co.,
55 App. Div. (N. Y.) 176; s. c. 66
N. Y. Supp. 899.

•True v. Niagara Gorge R. Co.,
70 App. Div. (N. Y.) 383; s. c. 75 N.
Y. Supp. 216. It has been badly
reasoned that the construction and
proximity of tracks in a railroad-
yard, used by railroad employes in
their daily work, is a question of
engineering, and that it is not for
the jury to say whether their close-
ness is negligence on the part of
the railroad: Mobile Ac. R. Co. v.


Healy, 100 111. App. 586. It has been
held that It is not negligence, by
reason of which an employe can re-
cover for injuries caused thereby,
for a street-car company so to con-
struct its tracks leading out of its
car-shed, that the ends of two cars
standing on opposite curves will
come together, whereby an employs
is crushed and injured, although it
would have been safer to make the
curves further apart: Goldthwait
v. Haverhill Ac. St. R. Co., 160
Mass. 554; s. c. 36 N. E. Rep. 486.
Nor for a railroad company so to
lay a spur-track that cars must be
pushed along by means of a stake
on to the main track when taken
down an incline behind the engine,
when done for the purpose of di-
minishing danger, and the choice
remains to do that way or take the
cars down in front of the engine:
Watts v. Hart, 7 Wash. 178; s. c.
34 Pac. Rep. 423, 771.

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its tracks that cars oil the main line cannot pass cars on the side-track
without endangering the lives of its employes. 60

§ 4271. Defects in Railway-Tracks Dangerous to the Feet of Em-
ployes. — Kailroad companies are not in general liable for failing to
construct their tracks so that they will be so smooth as to exclude all
danger of brakemen being hurt through slipping into the spaces be-
tween the ties, while engaged in their duties of coupling and un-
coupling cars; and the corresponding theory is that the brakeman
has no right to rely on the supposition that the track is smooth, and
to slip between the ties without looking. 51 It is a part of this theory
that a railway-track is not ballasted for the purpose of making it
safe for a brakeman to walk upon, but in order to make it firm and
safe for the passage of trains. 52 On the same line of thought it is
held that a railway company is not liable for an injury received by its
employ^ in falling over a piece of clinker of unusual size, when de-
scending from an engine ; 55 or in making a coupling ; 5 * or in stumbling
upon a pile of ashes between the rails, after he has been thrown off a
moving car by a jar, although he could have saved himself but for
the presence of the ashes. 55 But the doctrine that a railway company
may require its employes to go upon its track, especially in the night-
time, in the discharge of their duties, and that it is under no obliga-
tion to keep the track safe from pitfalls, may well be questioned.

§ 4272. Further of Defects in the Track Dangerous to the Feet of
Employes.— It has been held evidence of negligence taking the ques-
tion to the jury for a railroad company unnecessarily to suffer certain
ties to project a foot beyond the regulation ties, their ends being
more or less uneven and raised above the surface of the ground, in

" Pennsylvania Co. v. McCormick, from contributory negligence: Vor-

131 Ind. 250; s. c. 30 N. E. Rep. 27. hees v. Lake Shore &c. R. Co., 193

Where the regulation distance be- Pa. St 115; s. c. 44 Atl. Rep. 335.

tween the parallel tracks on the "Rogon v. Toledo &c. R. Co., 97

defendant's road was from seven Mich. 265; s. c. 56 N. W. Rep. 612.

feet to seven feet and two inches, "Finnell v. Delaware ftc. R. Co.,

the construction of a siding only 129 N. Y. 669; s. c. 42 N. Y. St. .Rep.

five feet and a half to six feet from 354; 29 N. E. Rep. 825; Kerrigan

the next track, leaving a space be- v. Pennsylvania R. Co., 194 Pa. St.

tween the two tracks not wide 98; s. c. 44 Atl. Rep. 1069.

enough to allow a brakeman upon "Lee v. Central R. Co., 86 Ga.

a freight-train to safely descend a *231; s. c. 12 S. E. Rep. 307.

side-ladder in the discharge oT his "Welch v. New York &c. R. Co.,

duties when cars are on the siding, 43 N. Y. St. Rep. 958; s. C. 17 N. Y.

is evidence of negligence to go to a Supp. 342.

jury in a case where a brakeman "Costello v. Philadelphia Ac. R.

has been injured while so acting, he Co., 2 Pa. Diet. Rep. 453; s. c. 32

not being informed of the narrow- W. N. C. (Pa.) 134.
ness of the space and being free


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4 Thomp. Neg.] duties and liabilities op the master.

consequence of which a freight-conductor was injured in alighting
from his train at night, when there were two inches of sleety snow on
the ground; 58 for a railroad company to permit spaces between the
ties to remain unfilled at places where there are no movable switches
requiring such unfilled spaces; 57 to leave the planking at a highway
crossing so uneven that a switchman endeavoring to make a coupling
at that place catches his foot or slips thereon and is thrown under the
cars ; 58 unnecessarily to leave open and unguarded a temporary ditch
across a tramway-track frequently used by employes in pushing cars
loaded with lumber, in such a maner that a person so pushing cars
would have little opportunity to perceive the danger; 59 negligently to
leave rubbish on the track over which a conductor, in the discharge
of his duties, stumbles and is killed. 60 It has been held that a rail-
road company which obtains its right to cross streets in a city upon
condition that it will plank between its rails, is under an obligation to
do the work, and maintain it when done, in such a way that it will
be reasonably safe to its employes who may be required to pass over

"Whitcher v. Boston Ac. R. Co.,
70 N. H. 242; & c. 46 Atl. Rep. 740.
In this case it appeared that the
plaintiff, a freight-conductor, in
alighting from a slowly-moving
train when there were two Inches
of sleet on the ground, struck his
foot on some hard object, causing
him to slip and fall. The exact
spot where his foot touched the
ground could not be determined,
but a mark made on the rail short-
ly afterwards by fellow .employes to
Indicate the spot where he fell was
found to be opposite four ties pro-
jecting a foot beyond the regulation
ties, and far enough out so that one
alighting from a train would step
on them. Way-bills which he held
in his hand, and blood from his in-
juries, were found on and about the
ties. There were no other objects
on which he could have stepped. It
was held that the question as to
whether or not the projecting ties
were the cause of plaintiff's injury
should have been submitted to the
jury: Whitcher v. Boston &c. R.
Co., supra.

"Illinois &c. R. Co. v. Cozby, 69
111. App. 256;. s. c. aff'd, 174 111. 109;
50 N. E. Rep. 1011.

"Herrick v. Quigley, 101 Fed.
Rep. 187; s. c. 41 C. C. A. 294 (as he
slipped, decedent grasped the grab-
Iron, and endeavored to jump out


from under the car, and was about
to accomplish this, when his foot
slipped into a hole between the ends
of two ties, and he was run over by
the cars and killed; the court prop-
erly left it to the jury to determine
whether the condition of the plank
at the crossing was the proximate
cause of the injury).

"Sadowski v. Michigan Car Co.,
84 Mich. 100; s. c. 47 N. W. Rep.
598 (ditch had been dug by order
of superintendent in order to lay a

"Linck v. Louisville Ac. R. Co.,
107 Ky. 370; s. c. 54 S. W. Rep. 184.
But It has been held that the fact of
a custom, in ballasting its tracks,
to make a crown in the center slop-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 62 of 165)