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Commentaries on the law of negligence in all relations online

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§ 4284. Cases of this Kind where the Company has been Excused. —

Eailway companies have been excused from liability to their employes
for injuries sustained through coming in contact with objects in dan-
gerous proximity to their tracks, under the following circumstances : —
Where the cars of another company, which was allowed to use the
yard of the defendant company, were left so close to the track upon
which a train was coming in the night-time, and but a few minutes
before its arrival, as to injure one of the trainmen thereon, — the fail-
ure of the yardmaster and of the engineer to discover their dangerous
proximity being excused under the circumstances; 15 where a line of

Rep. 88; 53 Am. ft Eng. R. Caa » Gibson v. Erie R. Co., 63 N. T.

115; Johnson v. St. 'Paul ftc. R. 449; rev'g s. c. 5 Hun (N. T.) 31

Co., 43 Minn. 53; s. c. 30 Cent. L. (Miller, J., dissenting).

J. 462; 44 N. W. Rep. 884; 41 Am. "Texas ftc. R. Co. v. Hohn, l'Tex.

ft Eng. R. Cas. 293. Civ. App. 36; s. c. 21 S. W. Rep.

n Bonner v. La None, 80 Tex. 117 ; 942. See post, 4856, et seq.

s. c. sub nam. Bonner v. La Noue, 1B Martin y. Louisville ftc. R. Co,

16 S. W. Rep. 803. 95 Ky. 612; s. c. 26 S. W. Rep. 801;

u Houston ftc. R. Co. v. Oram, 49 16 Ky. L. Rep: 151.
Tex. 341.

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telegraph-poles stood along the right of way of a railroad, and one of
the wires struck the head of an unusually tall brakeman standing on
the top of a freight-car which was somewhat above the ordinary
height, and the blow broke the insulator of the telegraph-pole, caus-
ing the wire to fall and catch on the brake-handle of the moving car
and coil about the body of the decedent, who stood, in the line of his
duty, on a flat-car on a side-track twenty-five feet from the main
track,- dragging him from the car and causing instant death, — it not
being shown that the railroad company had omitted any precaution
which prudent persons engaged in a like business would have taken ; ie
where the conductor of an electric street-railway company was caught
between the side of a trail-car and the doorway or pier of the power -
house, through which he assisted in pushing the car, because there
were only three and one-half inches of space on each side between the
car and the door, — the danger of attempting to pass between the car
and pier being obvious, and everything about the construction being
open, and apparent, and the injury occurring because he failed to
let go of the car when he came to the doorway ; 17 where a steam-rail-
way, company placed wing-fences at a cattle-guard, three feet ten
inches from the rails at the bottom, and inclining slightly outward at
the top, causing the death of a brakeman while hanging low on the
side of a freight-car, looking under it to discover what was causing
stones to fly ^herefrom, where n<J such accident had ever happened
before on the road or been anticipated, and no complaint has been
.made of the fences; 18 where the ash-pit and water-plug in a railroad-
yard were so located that an engine could simultaneously take in
water and have its ashes dumped, there being no proof that an injury
to an employe, whose leg was crushed by an engine while he was at-
tempting to get out of the ash-pit, was due to that fact. 19

"Wabash ftc. R. Co. v. Locke, 112 That the dangerous proximity of

Ind. 404; s. c. 11 West. Rep. 877; 8 car or other foreign body or

14 N. E. Rep. 391. substance to the track of a rail-

" Jennings v. Tacoma R. Ac. Co., way does not constitute a defect

7 Wash. 275; a. c. 34 Pac. Rep. 937. in the company's "ways," under

"McKee v. Chicago Ac. R. Co., the Alabama Employers' Liability

83 Iowa 616; s. c. 13 L. R. A. 817; Act, so as not to prevent a recovery

10 Rail, ft Corp. L. J. 472; 48 Am. because of negligence in placing

ft Eng. R. Cas. 154; 50 N. W. Rep. it there except on a complaint stat-

209. ' Compare Murphy v. Wabash ing a case of defect in the com-

R. Co., 115 Mo. Ill; Central Trust pany's ways, works, or machinery,

Co. ▼. East Tennessee ftc. R. Co., -^-see Kansas City Ac. R. Co. v.

73 Fed. Rep. 661. Burton, 97 Ala. 240; s. c. 53 Am.

"Reichel ▼. New York ftc. R. Co. ft Eng. R. Cas. 115; 12 South. Rep.

130 N. Y. 682; s. c. 42 N. Y. St 88.
Rep. 510; 29 N. E. Rep. 763*



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



Subdivision II.



An Alphabetical Catalogue of such Objects — Com-
pany Liable or Not Liable.



Section

4286. Cattle-chutes.

4287. Cattle-guards.

4588. Clearance-post between main
track and switch-track.

4289. Coal-shed.

4290. Derricks.

4291. Girder between pillars of an

elevated-railroad structure.

4292. Lumber, pile of near side-

track.

4293. Mail-cranes.

4294. Oil-box.

4296. Overhead wires.



Section

4296. Rock: projecting ledge of

rock.

4297. Roofs: projecting roofs of

station-houses.

4298. Signal-posts.

4299. Station-limit board.

4300. Stones, pile of.

4301. Switch-stand, switch-target.

4302. Telegraph-poles.

4303. Timber: projecting timber.

4304. Trees.

4305. Water-tank, water-spout,

water-plug.



§ 4286. Cattle-Chutes. — It is negligence for a railroad company to
erect and maintain a cattle-chute in dangerous proximity to its
tracks, notwithstanding it may be more convenient for the loading of
cattle than if at a greater distance; 1 or so as to endanger the lives of
brakemen in using the ladders on the side of the cars. 2

§4287. Cattle-Guards. — A locomotive-engineer, while hanging to
the side of the tender in order to tighten a nut underneath, through
which water was escaping, was struck by a fence at a cattle-guard*
and injured. The evidence tended to show that there was a space
between the fence and the tender of six or eight inches at the bottom,-
and sixteen or eighteen inches at the top; and that it was not unusual
for engineers to make similar repairs without stopping their trains.
The plaintiff had made but two trips in daylight over the part of the
road where he was injured ; and he testified that he did not know how
close the. fences along the road were to the track, and did not know
they were close enough to strike him. It was held that there was
evidence from which a jury might fairly infer that he was in the line
of his duty in taking such a position on the side of the tender; and
hence, that they might find that the accident was one which the com-



1 Allen v. Burlington Ac. R. Co.,
57 Iowa 623.

•Keist v. Chicago &c. R. Co., 110
Iowa 32; s. c. 81 N. W. Rep. 181
(whether the brakeman knew of the
danger, or, if he did, whether, un-
der the circumstances, he had the

442



danger in mind, and ought to have
avoided it, was a question for a
jury, under proper instructions
from the court; and for error in
refusing to • submit this question, ,
among other errors, a judgment for
defendant was reversed).



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LIABILITY FOE INJURIES TO RAILWAY EMPLOYES. [2d Ed.

pany, in the exercise of ordinary prudence, would have guarded
against; and that the question was properly submitted to the jury. 8

§ 4288. Clearance-Post between Main Track and Switch-Track. —

The office of this device is to indicate the point beyond which stand-
ing cars on the side-track are to be considered free from danger of
interference with passing trains. It is said to be a common and
necessary appliance to railroads, and its use is held not to be negli-
gence. It was so held where an employ^ was injured by coming in
contact with it after alighting to operate a switch. 4

§ 4289. Coal-Shed. — For six years a railroad company maintained
a coal-shed which stood twenty-eight and a half inches from the lad-
ders of passing freight-cars. There was a footboard seven feet from
the ground attached to the shed, which was only sixteen and a half
inches from such ladders. This board was used by the employes at
the coal-chute, but the trainmen had no connection with operating it.
A brakeman, while descending a ladder on a freight-cai passing the
coal-shed, in the discharge of his duties, was struck by the end of the
board and thrown to the ground and mortally injured. The evidence
was held to be sufficient to show that the structure was dangerous to
persons operating freight-trains in the usual and ordinary manner;
and Hence a finding of the jury to this effect was sustained. The
question whether the brakeman knew or was chargeable with knowl-
edge of the presence of the obstruction was held to be a question for a
jury; and a verdict and judgment for the plaintiff were sustained. 5

§4290. Derricks. — Negligence has been imputed to a railroad
company for erecting a derrick beside its track without putting it in
the care of a competent person charged with the duty of keeping it
properly fastened. 6

• Murphy v. Wabash R. Co., 115 fastened at the time of the acci-
Mo. 111. Compare McKee v. Chi- dent, and although it had remained
cago ftc. R. Co., 83 Iowa 616; s. c. unfastened for a short time only:
13 L. R. A. 817; 10 Rail, ft Corp. L. Gates v. Chicago ftc. R. Co., supra.
J. 472; 48 Am. ft Bng. R. Cas. 154; A brakeman on a freight-train was
50 N. W. Rep. 209. killed by the falling of derricks

4 Scidmore v. Milwaukee ftc. R. placed on each side of the track,

Co., 89 Wis. 188; s. c. 61 N. W. Rep. and used by an independent con-

765. tractor to unload heavy stone from

'Chicago ftc. R. Co. v. Stevens, the cars on the track. The der-

189 111. 226; s. c. 59 N. E. Rep. 577; ricks were fastened together by

aff'g s. c. 91 111. App. 171. overhead wires, and were kept in

• Gates v. Chicago ftc. R. Co., 2 position by guy-ropes fastened to
S. D. 422; s. c. 50 N. W. Rep. 907. fence-posts, one of which was de-
And this although the company did cayed. The fall was caused by the
not know that the derrick was un- breaking and pulling up of such

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

§ 4291. Girder between the Pillars of an Elevated-Railroad Struc-
ture. — A street-railway company is not guilty of negligence toward a
workman employed by it upon a temporary track, in locating such track
so close to the girder between the pillars of an elevated-railroad struc-
ture that one cannot stand between a horse-car passing on the track
and such girder, where there is nothing to prevent the workman from
stepping to the other side of the track upon the approach of the car
but he chooses to stand by the girder and is crushed. 7

§4292. Lumber, File of Near Side-Track. — For a railroad com-
pany to allow a pile of lumber to remain within a few feet of a side-
track in its yards so as to obstruct the moving of cars along the side-
track, in consequence of which its employes are injured, has been
held to be evidence of negligence to go to the jury. 8

§4293. Mail-Cranes. — Where a railroad company permitted a
mail-crane to become and remain so loose on its foundation that,
when loaded with a mail-sack, it leaned towards the track, so as to
come within from seven to twelve inches of the locomotive-cab, it was
held that such act was negligence, for which the widow of the loco-
motive-fireman, killed while in the discharge of his duties by striking
such crane in passing, was entitled to recover, he being free from con-
tributory negligence. 9 So, it was held by the Supreme Court of New
York that a railway company which so erects a mail-crane that it pro-
jects within twelve inches of the side of a car, when it might have
been twice as far away, whereby a brakeman is injured while climbing
upon the side of the car, — is guilty of negligence, and ought to pay
damages to the injured brakeman; 10 but, reversing this decision, the
Court of Appeals of New York took into consideration the fact that
the crane was properly constructed; that similar cranes were ex-
tensively used on other lines of the road; that the crane could not
be placed further from the track and perform the service for which

posts. It was held that the rail- T Sullivan v. Third Ave. R. Co.,

road company was negligent, as it 19 App. Div. (N. T.) 195; 8. c. 45

should not have allowed the der- N. Y. Supp. 1083.

ricks to be used in that condition *Bessex v. Chicago &c. R. Co., 45

over its tracks and men, without Wis. 477 (and trial court erred in

taking some care at least to dis- refusing to submit the case to the

cover and guard against the danger: jury).

the duty to furnish Its men a rea- •Malott v. Laufman, 89 111. App.
sonably safe place to work being 178 (it was the fireman's duty when
implied in the contract of employ- passing the above station to keep
ment, and requiring the exercise of a sharp lookout in front and to-
reasonable care and diligence to ward the rear of the train),
discharge it: Gulf Ac. R. Co. v. De- 10 Sisco v. Lehigh Ac R. Co., 75
laney, 22 Tex. Civ. App. 427; s. c. Hun (N. Y.) 582; s. c. 59 N. Y. St.
55 S. W. Rep. 538. Rep. 162; 27 N. Y. Supp. 671.

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LIABILITY FOR IXJUBIES TO RAILWAY EMPLOYES. [2(1 Ed.

it was designed, although some other railroads use a crane with a
movable arm which rises and falls automatically when not in use,
while the cranes with stationary arms were preferable to the others
because they permit a greater space between the end of the arm and
the side of the car, — found no negligence in the act of the railroad
company in placing and maintaining the crane where it did. 11

§4294. Oil-Box. — A railroad-engineer, and consequently the com-
pany, whose representative he is, is not negligent toward a switchman
on the footboard of a switch-engine, so as to charge the company with
liability for injuries to the latter, in running by an oil-box near the
track, but far enough away to permit the engine to pass safely, unless
he knows or has reason to believe that the switchman is in such a
position that he may be injured in passing such box; and a com-
plaint which fails to aver that the engineer knew or had reason to be-
lieve that the plaintiff was in such position is demurrable. 12

§ 4295. Overhead Wires. — A steam-railway company has been held
chargeable with negligence toward its employes in permitting an
electric street-car company to construct and maintain over the
tracks of the steam-railway company a guy-wire, suspended so low
as to endanger the lives of the employes of the steam-railway com-
pany ; 18 and in placing a wire strung across a side-track at a station
some miles from the company's shops, so low as to strike an employ^
while making repairs on the roof of a passenger-car, if it could be
reasonably anticipated by the company that at some time such siding
might be used for such a purpose, and that a passenger-car might pass
under the wire while such repairs were being made. 14

11 Sisco v. Lehigh Ac. R. Co., 145 to be properly strung, but had been

N. Y. 296; 8. c. 64 N. Y. St. Rep. sagged down and the fastenings

708; 39 N. E. Rep. 958; rev'g s. c. broken in a storm occurring an

75 Hun (N. Y.) 582; 69 N. Y. St. hour before the injury to plaintitT:

Rep. 162; 27 N. Y. Supp. 671. Richmond v. New York &c. R. Co.,

"Louisville Ac. R. Co. v. Bouldin, 8 App. Div. (N. Y.) 382; s. c. 40

110 Ala. 185; 8. c. 20 South. Rep. N. Y. Supp. 812; 75 N. Y. St. Rep.

325. . 196.

"Erslew v. New Orleans Ac. R. u Stoltenberg v. Pittsburg &c. R.
Co., 49 La. An. 86; s. c. 21 South. Co., 165 Pa. St. 377; s. c. 25 Pitts. L.
Rep. 153. But another court has J. (N. S.) 295; 36 W. N. C. (Pa.)
held that a railroad company is not 87; 30 Atl. Rep. 980 (submission of
chargeable with negligence toward question to jury approved, and
a brakeman injured by coming in judgment for plaintiff affirmed). A
contact with a sagging wire main- wire cable, running between two of
tained by a third person over its the defendant oil company's build-
tracks, where it had no connection ings, and over a railroad-track, was
with, and did not know of or con- lowered for repairs. There was an
sent to, the placing . of the wire engine working on the track, and
across its property, which appeared the defendant's superintendent di-



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

§4296. Bock: Projecting Ledge of Bock. — Negligence has been
imputed to a railroad company where it allows a projecting rock to
remain so near the track as to injure a brakeman climbing to the top
of its freight-cars in the customary manner, in the discharge of his
duties. 15 But another court denied a recovery under the condition of
evidence stated in the marginal note on the ground that there was no
evidence that the brakeman was killed by being brought in contact
with a projecting ledge of rock in a cut in the night-time, which was
the theory of the action, — the court plainly undertaking to perform
the office of a jury. 16

§4297. Boofs: Projecting Boofs of Station-Houses. — It need not
be said that a railroad company is guilty of negligence if it extends
the roofs or eaves of its station-houses so far out toward its tracks as
to knock or scrape its employ6s off its cars when engaged in their
duties. But one decision is found which, in the teeth of the statute
providing that no person or corporation can by special contract with
its employ6s become exempt from its liability to them for injuries
suffered by them in their employment which result from the em-
ployer's own negligence, or that of any other person in its employ, —
holds that a servant who, by his contract of employment, undertook



rected the map in charge qt the
work to wait until the engine was
out of the yard, and station a man
to stop the engine, and warn the
workmen, if it returned. The
watchman was not so stationed.
The engine returned, struck the
lowered cable, and killed the plain-
tiff's husband, who was employed
by the defendant, while he was en-
gaged in helping to repair the cable.
It was held that the defendant was
negligent in not furnishing a watch-
man or seeing that he was sta-
tioned so as to stop the engine:
Burns v. Merchants &c. Oil Co., '26
Tex. Civ. App. 223; s. c. 63 S. W.
Rep. 1061 (cable pulled to the
ground a platform on which de-
ceased was working).

"Chicago &c. R. Co. v. Davis, 92
Ala. 300; s. c. 9 South. Rep. 252.

"Wintuska v. Louisville &c. R.
Co., 14 Ky. L. Rep. 579; s. c. 20 S.
W. Rep. 819 (no off. rep.). It ap-
peared that no one knew of the ac-
cident until the train had proceed-
ed some miles; that it occurred on
a dark night; and that deceased
was last seen on a car, going in the

446



direction of a flat-car, to reach
which he would have been obliged
to descend a ladder on the side.
There was evidence that in doing
this he would have been in danger
of coming in contact with the ledge.
His body was found in the cut
where the ledge of rock project-
ed, with a cut upon the right
side of his head, which was the
side upon which his head would
most likely have been struck had
he come in contact with the ledge,
the ladder being on the right side
of the car. His coupling-stick was
found lying upon a projecting part
of the ledge, ten feet from the
ground. The court thought it quite
as likely that he became dizzy
while walking along the car, or
stumbled in the darkness, and fell,
striking his head on the ground, as
that he was injured, in attempting
to descend the lad'der; and that
while "one may suspect" that it
happened as alleged, there was no
evidence tending to prove it, and
a peremptory instruction for de-
fendant was proper: Wintuska v.
Louisville &c. R. Co., supra.



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LIABILITY FOR. INJURIES TO RAILWAY EMPLOYES. [2d Ed.

to make a careful examination of all -things near the tracks, so that he
might understand the dangers attending them, undertook the risk of
all those permanent structures which he had a chance to examine and
which he undertook to examine, so that where he was struck and in-
jured by the overhanging cornice of the roof of a station-house, he
could not recover damages from the company. 17

§4298. Signal-Posts. — It is the duty of a railroad company to
place its signal-posts at a reasonably safe distance from its tracks, so
as not to be dangerous to brakemen and other operatives on its
trains, or to warn them of such dangers if they exist. Where it is
clearly established, or obvious, that the railroad company has com-
plied with this duty, and whether the employ^ has or has not been
guilty of contributory negligence, the question is for the court;
otherwise it is for the jury. A man who had been employed for
about two weeks in defendant's yard, was killed by coming in contact
with a eignal-post while ascending the side-ladder of a freight-car.
The post was four feet from the rail. There was evidence tending to
show that it was too near the cars to be practically safe for operatives,
unless aware of the danger, but there was no evidence that the de-
ceased had ever been warned or notified of the danger. There was
also evidence tending to prove that a signal-post was necessary at or
near that point, and evidence showing the character of the duties of
the deceased and the nature and extent of the defendant's business.
It was held that whether the defendant had used reasonable care and
diligence within the rule stated, was for the jury to say ; and that the
mere fact that the deceased had passed the post many times a day for
two weeks, and that it was so prominent and so essential in the service
that his attention must have been drawn to it, was not conclusive
evidence of his negligence, but the question was likewise for the jury. 18

17 Quinn v. New York &c. R. Co., railroad companies to erect "bridge-
175 Mass. 150; s. c. 55 N. E. Rep. guards" wherever a bridge or any
891. For another case where the other structure crosses or projects
evidence was deemed insufficient to over the track, it was held that a
sustain a verdict for negligently t railroad company was not required
causing the death of a brakeman ' to maintain a guard at a cornice of
claimed to have been knocked off a roof over a station platform,
a car by coming in contact with where the line of the cornice was
the roof of a station-building con- one foot and five inches outside the
structed' too near the track, — see line of the nearest rail, since it
Houston &c. R. Co. v. Loeffler (Tex. neither "crossed" nor "projected
Civ. App.), 59 S. W. Rep. 558 (no over" the track: Quinn v. New
off. rep.); s. c. on former appeal York &c. R. Co., 175 Mass. 150; s.
(Tex. Civ. App.), 51 S. W. Rep. 536 e. 55 N. E. Rep. 891.
(no off. rep.). Under Mass. Rev. "Johnson v. St. Paul &c. R. Co.,
Laws 1902, ch. Ill, § 184, requiring • 43 Minn. 63.

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

§ 4299. Station-limit Board. — A "station-limit board," — which is
understood to be a signboard marking the limit or boundary of the
station-grounds, — when placed so near the railroad-track that an em-
ploye is liable to be struck by it in the proper, though unusual dis-
charge of his duty, shows negligence on the part of a receiver of the
railroad who so maintains it. In the particular case a fireman, in-
structed by the engineer to inspect a hot-box while the train was in
motion, leaned out of the gangway and was struck. While the posi-
tion he assumed was one that an employ^ would rarely assume, still,
for the purpose, it was a proper position, and should have been antici-
pated in erecting the station-limit board. 19

§4300. Stones, Pile of. — Where the duties of a switchman re-
quired him to jump on a moving engine, evidence that the railroad
company left near the switch, which plaintiff had to throw, a pile of
stones from eighteen inches to three feet high, and only eighteen
inches from the track, and allowed them to remain there several
months, whereby plaintiff was injured in attempting to jump on the
engine, was sufficient to support a finding that defendant was guilty
of negligence in not furnishing plaintiff a safe place to work. 20

§4301. Switch-Stand, Switch-Target. — Under this principle a
railroad company is liable in damages to an employ^, injured without
his own fault, where the target or arm of an upright switch-stand is
so near the track as to injure a switchman while riding, in the night,
on the ladder of a box-car; 21 or where it allows a switch-stand to be
so near the track that it extends to within nine or ten inches of pass-
ing cars, — especially where one of its rules declares that no building



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 64 of 165)