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Commentaries on the law of negligence in all relations online

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Missouri Pac. R. Co. v. Henry, 75
Tex. 220; 6. c. 12 S. W. Rep. 828.



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4 Thomp. Neg.] duties and liabilities of thi? master.

Abtiole VIII. Injuries to Railway Employes from Defects
in Cars, ©ther than "Foreign" Cars.



Section

4360. General nature of the liability

of railway companies to
their employes for famish-
ing defective cars.

4361. This duty an absolute and un-

assignable one.

4362. What the plaintiff must show

in order to a recovery on
this ground.

4363. Facts upon which negligence

has been ascribed in oper-
ating defective cars.

4364. Defects in cars brought into

railway-yards and not prop-
erly inspected.

4365. Facts upon which negligence

not ascribed.



Section

4366. Defects in cars on repair-

tracks.

4367. Bolt projecting too far from

the bottom of a car.

4368. Evidence of negligence, prox-

imate cause, instructions,
and other questions relat-
ing to the use of defective
cars.

4369. Federal statute requiring

hand-holds on freight cars.

4370. Ohio statute prohibiting use

of defective cars, etc., and
charging company with
knowledge of defects.



§4360. General Nature of the Liability of Railway Companies
to their Employes for Furnishing Defective Cars. — The duty rests
upon railway companies, in favor of their employes, of exercising
reasonable care and maintaining a reasonable inspection, to the end
that the cars committed to such employes are constructed and main-
tained in a reasonably safe condition. 1 Here, as in other cases, the
degree of care which the law puts upon the railway company is
measured by the circumstances, and is involved in such considerations
as the kind of machinery necessary in the particular service, the na-
ture of the business, the incidental hazards, etc. 2 If any certain and
satisfactory test of the machinery used by a railroad company in trans-
portation is known, which is within the reach of the company, it
should be applied, and it is negligence in the company to rely upon
a test which is clearly insufficient. 8 It has been held that a railroad
company fully discharges its duty toward its employes as to appli-
, ances on its own cars or those received from other companies, if they
are such as are in ordinary use, though they are not the best or safest



*St. Louis Ac. R. Co. v. Higgins,
53 Ark. 458; s. c. 44 Am. ft Eng. R.
Cas. 541; 14 S. W. Rep. 653; King
v. Ohio Ac. R. Co., 14 Fed. Rep. 277;
Daniels v. Union Pac. R. Co., 6
Utah 357; s. c. 23 Pac. Rep. 762;
Goodman v. Richmond Ac. R. Co.,
81 Va. 576.

480



* Jones v. New York &c. R. Co.,
22 Hun (N. Y.) 284; ante, § 3772.

8 Texas Ac. R. Co. v. Hamilton, 66
Tex. 92 (defective wheel under car;
company relied on a careful obser-
vation of the wheel; but the ham-
mer test, applied while the wheel
was raised from the track, would



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

for the purpose. 4 It cannot escape attention that this holding substi-
tutes the ordinary use of railroad companies in the place of the law
of the land, and makes such ordinary use the standard of care al-
though it may be prompted by greed and founded in gross and crim-
inal negligence.

§4361. This Duty an Absolute and Unassignable One.— This
duty, it is needless to say, is one of those absolute and unassignable
duties for the performance of which the railroad company is responsi-
ble, no matter to whom or to what grade of servant it commits its per-
formance; the duty cannot be delegated so as to exonerate the company
from liability for its non-performance. 5 It follows that, if the duly
is delegated to a fellow servant, he becomes, with respect to it, a vice-
principal of the master ; his negligence in discharging it is the negli-
gence of the master; the fellow-servant rule does not obtain so as to
exonerate the master; but in case of an injury to a servant through
the negligent performance of the duty, the master will be responsible. 9

§4362. What the Plaintiff must Show in Order to a Recovery
on this Ground. — In order to a recovery the plaintiff must either



have disclosed with certainty any
flaws in the wheel; and it was not
shown that there were no adequate
means for applying such test).

1 Dooner y. Delaware Ac. Canal
Co., 171 Pa. St 581; s. c. 26 Pitts.
L. J. (N. S.) 227; 33 Atl. Rep. 416
(car with two iron steps, a brake,
and a wheel, upon the middle of
the end of the car, but no hand-
holds of any kind at or near the
corners of the car).

• Union Pac. R. Co. v. Daniels,
152 U. S. 684; s. c. sub nom. Union
Pac. R. Co. v. Snyder, 38 L. ed. 597;
14 Sup. Ct. Rep. 756.

• For example, the standards used
to keep a load of lumber on a low-
sided car in place, whether for con-
stant use and permanently attached
to the car, or unattached and in-
tended for use on a single occasion,
are appliances necessary for the
proper equipment of the car, and it
is the duty of the master to fur-
nish proper standards for the pur-
pose, which cannot be delegated to
a fellow servant, nor performed by
furnishing such fellow servant with
proper standards, with which he
fails to equip the cars. The com-
pany's whole duty is not fulfilled
short of the actual proper equlp-

VOL. 4 THOMP. NEO.— 31



ment of the car: Pennsylvania R.
Co. v. La Rue, 81 Fed. Rep. 148;
s. c. 55 U. S. App. 20; 27 C. C. A.
363 (foreman of car-repairers,
whose duty it was, failed to substi-
tute oak standards in place of every
hemlock standard — hemlock stand-
ard broke and allowed lumber to
project from side of car and strike
fireman on passing train — recov-
ery) [citing Bushby v. New York
Ac. R. Co., 107 N. Y. 374; s. c. 14
N. E. Rep. 407 (where it was held
that side-standards are necessary
appliances forming part of a car
for hauling lumber, and a railroad
company cannot, as to its employe 1 ,
delegate to a shipper the duty of
furnishing such standards; and the
company was held liable to an em-
ployg for an injury caused by the
giving way of a poor stake fur-
nished by a shipper while the train
was going round a curve, the com-
pany not having furnished any
stakes, but relying on the ship-
per)]. See also, Mclntyre v. Bos-
ton ftc. R. Co., 163 Mass. 189; 8. c.
39 N. E. Rep. 1012 (similar to prin-
cipal case — standards furnished for
holding load of ties on platform-car
— master's duty to see that they are
used).

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

bring home to the defendant a knowledge of the defect, or prove tl
it was ignorant of it in consequence of its negligence in failing
maintain the proper inspection. 7 The proposition is extracted fn
another case that a railroad company which has performed its di
of inspecting a car with ordinary care is not liable for an injury to
employ^ caused by a defect which existed, but was not discovered,
the time of the inspection, unless it had knowledge of such defec
But the value of this statement of doctrine depends upon its appli<
tion in any given case. The "ordinary care" which railroad co
panies often bestow upon their machinery and appliances might w
be characterized as habitual negligence. It seems to have been so
the case under consideration. An inspector spent about five minu
in examining the car, without tools; whereas it was alleged thai
reasonable and efficient inspection would have required the use
tools and taken fifteen minutes, and would have disclosed the defe
It was held that if the inspector followed the usual and ordinary mi
ner of doing the work, he was in the exercise of ordinary care, and 1
company was not liable. 9

§ 4363. Facts npon which Negligence has been Ascribed in Op
ating Defective Cars. — Negligence has been ascribed to railway co
panies for failure to perform this duty in the following particulars
Permitting a coupling-pin to be upon the outside of the car wl
in motion, without being secured in its place, so that the pin h
under the wheels, throwing the train from the track and injuring
employ6 standing near by; 10 leaving the rear end of a car unprotect
so that the train-conductor, in the discharge of his duty, steps off
car in a moment of f orgetf ulness in a dark tunnel ; lx permitting a <
to be used on which the reach-rod is absent from the brake-beam
front of the wheels, causing the beam to hang lower and farther f
ward than it otherwise would have done, making it dangerous U
brakeman to go between the cars to uncouple them, where this
feet is known to the company, or might be known by the exercise
reasonable care; 12 maintaining a car-platform in a rotten and defect
condition, so that it gives way, precipitating an employfi between 1

T Chicago &Ci R. Co. v. Piatt, 89 111. Iowa 607; s. c. 4 L. R. A. 420;

141. Compare East St. Louis Pack- N. W. Rep. 555.

lng Ac. Co. v. Hightower, 92 111. 139. n Fiero v. New York Ac. R. <

•Louisville Ac. R. Co. v. Bates, 71 Hun (N. Y.) 213; s. c. 64 N.

146 Ind. 564; s. c. 45 N. E. Rep. St Rep. 373; 24 N. Y. Supp. 805.

108. "Louisville Ac. R. Co. v. Bi

•Louisville Ac. R. Co. v. Bates, 116 Ind. 566; s. c. 2 L. R. A. 5

supra. 28 Am. L. Reg. 148; 19 N. E. E

"Doyle v. Chicago Ac. R. Co., 77 453.

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

cars; 18 maintaining in service a caboose which has been repeatedly
condemned and marked as out of repair; 14 maintaining a defective
appliance for holding a water-supply pipe in position when not in
use, whereby it swung around over the train, precipitating a brake-'
man therefrom; 15 maintaining in its service "push-cars" without
brakes, in consequence of which defect an employ6 is injured while
riding thereon, according to custom, although such cars are em-
ployed for the carriage of materials only; 16 allowing a freight-car to
remain in service some time after a handle of the ladder has been
broken off, in consequence of which a brakeman, in attempting to de-
scend from it in the night, grasps at the supposed handle, misses it,
and is killed ^ 7 maintaining a defective stake used to support lumber
on a platform-car, although the stake may have been furnished by a
shipper, 18 — the liability not being avoided by the fact that the defect
was not apparent on a previous inspection of the car, where it had no
rules requiring the inspection of stakes, and the inspection given
was casual; 19 maintaining in service a car built of defective timbers,
which are broken apart in a collision not of sufficient force to have
produced this result if the timbers had been sound. 20



"Bonner v. Glenn, 79 Tex. 531;
8. c. 15 S. W. Rep. 572.

14 St Louis ftc. R. Go. v. biggins,
53 Ark. 458; s. c. 44 Am. & Eng.
R. Cas. 541; 14 S. W. Rep. 653.

"Ohio.&c. R. Co. v. Johnson, 31
111. App. 183.

» Miller v. Union Pac. R. Co., 17
Fed. Rep. 67. Contra, York v. Kan-
sas City R. Co., 117 Mo. 405; s. c.
22 S. W. Rep. 1081.

"Richmond Ac. R. Co. v. Moore,
78 Va. 93.

M Bushby v. New York &c. R. Co.,
107 N. Y. 374; s. c. 14 N. B. Rep.
407; aff'g s. c. 37 Hun (N. Y.) 104.

"Bushby v. New York &c. R. Co.,
107 N. Y. 374; s. c. 14 N. B. Rep.
407; affg s. c. 37 Hun (N. Y. 104.

* Parsons v. Missouri Pac. R. Co.,
94 Mo. 286; s. c. 12 West. Rep. 615;
6 S. W. Rep. 464.

Further Particulars in which
"Negligence has been Ascribed to
Railway Companies: — For an elec-
tric-railway company to maintain,
in use a car which, by reason of the
worn-out condition of electrical
fields, has frequently stopped sud-
denly and as suddenly started up,
where no proper care has been ex-
ercised in renewing the fields or
proper tests applied to ascertain
their condition; since it is bound



to know that, with a low dasher
in front, the inevitable result of
such action of the car will be to
suddenly hurl the motorman upon
the ground in front of the car and
greatly imperil his life: Beardsley
v. Minneapolis St. R. Co., 54 Minn.
504; s. c. 56 N. W. Rep. 176. For
a railroad company to leave a bolt
protruding from the top of a box-
car so that a train-hand, while on
top of the car in the night-time,
strikes his foot against it, causing
him to fall and suffer injuries, —
with the conclusion that the condi-
tion of the bolt was evidence of
negligence on the part of the rail-
road company in failing to dis-
cover and remove the same: Inter-
national &c. R. Co. v. Bayne, 28
Tex. Civ. App. 392; s. c. 67 S. W.
Rep. 443. For a railroad company
to require its employes to handle
and ship cars from one place to an-
other on the tracks in the yard of
a refining company, the owner of
the cars, one of which cars has a
defective stirrup, a giving way of
which injures a servant of the rail-
way company; the court reasoning
that it is not the ownership of the
cars or the line on which they are
operated that imposes the liability,
but it is the shifting or handling

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

§4364. Defects in Can Brought Into Railway- Yards and Not
Properly Inspected. — A railway company was held liable for the
death of a switchman while making a coupling, caused by a defective
car which had been brought from a distant point into the railroad-
yard twQ or three hours before the accident, where it had not been in-
spected, or the inspection had been negligently performed. 21

§ 4365. Facts upon which Negligence Not Ascribed. — But such a
company has been held to be not guilty of actionable negligence in the
following particulars: — For not having adopted and provided in its
cars a resistance-coil for the purpose of making the starting of the



of them by the orders of the rail-
road company without adequate in-
spection to discover their condi-
tion: Elkins v. Pennsylvania R.
Co., 171 Pa. St. 121; s. c. 33 Atl.
Rep. 74; 26 Pitts. L. J. (N. S.) 205.
For a railroad company to operate
in its train a sleeping-car, the steps
'leading from which have been re-
moved, without fastening the gate
between the platform and the steps,
where such gate might easily have
been secured, whereby the con-
ductor of its train is injured: Cam-
eron v. Great Northern R. Co., 8
N. D. 124; s. c. 5 Am. Neg. Rep.
454; 12 Am. & Eng. R. Cas. (N. S.)
520; 77 N. W. Rep. 1016. For a
railroad company to send out a car
with a handhold necessary for the
safe and prompt performance of the
duties of a brakeman in coupling
and uncoupling, in an obviously de-
fective condition: Settle v. St. Louis
4c. R. Co., 127 Mo. 336; s. c. 30 S.
W. Rep. 125 (handhold bent in at
the center so that it could be
grasped only near the ends). For
a railroad company whose ordinary
cars are low enough to enable its
brakemen standing on the top of
them to pass under an overhead
bridge in safety, to place in its
train without notice to its brake-
men a car which is so high that a
brakeman could not safely stand
upon it while passing under the
bridge in the discharge of his du-
ties: Southern R. Co. v. Duvall,
22 Ky. L. Rep. 56; s. c. 56 S. W.
Rep. 988; denying rehearing of s. c.
21 Ky. L. Rep. 1153; 54 S. W. Rep.
741; the opinion in which was sub-
stituted for that in s. c. 20 Ky. L.
Rep. 1915; 50 S. W. Rep. 535, where

484



the facts are stated (no off. rep.).
For a railroad company to use an
engine in its switch-yard with its
drato-bar broken and lying on the
track for a space of six and one-
half hours, in consequence of which
an employ^ riding on the pilot of
an engine in the discharge of his
duties receives an injury: Chi-
cago &c. R. Co. v. Delaney, 169 111.
581; s. c. 48 N. E. Rep. 476; aff'g
s. c. 68 111. App. 307. For a rail-
road company to place a brakeman
after dark on a car which has just
been inspected and passed as in
good condition, one of the rungs of
the ladder of which is so bent down
that he cannot get hold of it in
getting off the car: Lake Shore
&c. R. Co. v. #yan, 70 111. App. 45.
A brakeman has a right to have
ladders on freight-cars maintained
in good condition, so far as can be
done with reasonable care; and
where, at the place where a brake-
man was killed, the snow was
found all trampled, and on top of
the snow a broken rung was found,
such as is used in the ladders on
freight-cars, which was bent or
dented, and a portion of the break
was rusty and seemed to be old,
and a portion was bright as though
recently broken, such evidence jus-
tified a verdict that defendant was
guilty of, and deceased free from
negligence, though no one had seen
the accident: Jones v. New York
Cent Ac. R. Co., 28 Hun (N. Y.)
364; s. c. aff'd, 92 N. Y. 628
(mem.).

n Missouri &c. R. Co. v. Murphy,
5Q Kan. 774 (mem.); s. c. in full,
52 Pac. Rep. 863.



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

car more gradual, at a time when such coils have not become known,
approved, and recognized as a useful appliance for that purpose; 22
for operating freight-cars with hand-holds running lengthwise of the
cars, although most of the other owners of cars have them running
crosswise, where it appears that many freight-cars have them running
lengthwise, and it is not shown that such an arrangement has ever
been condemned, or abandoned by prudent railroad companies, or
that it has been found more dangerous than any other method ; 28 for
failing to provide a sufficient platform on a car for a man employed
thereon to stand upon where the evidence failed to show that the
insufficient width of the platform aided in producing the injury which
he received; 24 for failing to have the brake-beams on its cars hung
high enough to pass over a brakeman lying on the track between the
rails ; 2 * for furnishing a brake-staff on a car which gives way when the
brakeman attempts to use it as a hand-hold in climbing upon the car
while it is in motion, it being sufficient for the purpose for which it
is intended ; 26 for failing to have the end-gate of a gondola-car, prop-
erly constructed for the purpose for which it was intended, securely
fastened so as to allow a brakeman to use it as a hand-hold in attempt-
ing to alight from the car while it is in motion. 27



" Lorimer v. St. Paul City R. Co.,
48 Minn. 391; s. c. 51 N. W- Rep.
126.

* Chicago Ac. R. Co. v. Armstrong,
62 111. App. 228, per Waterman, J.,
holding that It is not for a jury to
say how handholds shall be placed
on a car, but that a jury may
say whether the handhold as it is
placed is reasonably safe for the
purpose intended; the burden being
on plaintiff to prove that it is not.

M Youngbluth v. Stephens, 104
Wis. 843; s. c. 80 N. W. Rep. 443.
The plaintiff was knocked from the
front platform of car which he was
operating and which was used to
take clay out of a pit The car was
drawn out of the pit by a wire rope
wound around a drum. Plaintiff
was riding with his back to the
rope. The rope caught under a
plank in the walk between the
tracks, raising it up so that as the
car advanced it struck and broke
plaintiff's leg.

* Texas Cent R. Co. v. Waller, 28
Tex. Civ. App. 4; s. c. 66 S. W. Rep.
466.

* Elgin Ac. R. Co. v. Docherty, 66
111. App. 17.



* Graham v. Chicago Ac. R. Co.,
62 Fed. Rep. 896.

Other oases where the Company
was Exonerated: — Freight-car found
on track in a crippled condition, ex-
posing brakeman to unusual risks
in managing it: Judkins v. Maine
Cent R. Co., 80 Me. 417; s. c. 6 N.
Eng. Rep. 715; 14 Atl. Rep. 735. In-
jury through defect in car, where
the company had exercised reason-
able and proper care in respect of
it: Galveston Ac. R. Co. v. Davis,
4 Tex. Civ. App. 468; s. c. 23 S. W.
Rep. 301; s. c. aff'd on rehearing, 23
S. W. Rep. 1019. Company using
dump-car, such as ordinarily in use,
and operating it by usual methods:
Cordelia v. Dwyer, 9 Misc. (N. Y.)
399; s. c. 61 N. Y. St. Rep. 690; 29
N. Y. Supp. 1073. Derailment
where no defect found in the car
upon inspection, either before or
after the accident: O'Connor v. Illi-
nois Cent. R. Co., 83 Iowa 105; s. c.
48 N. W. Rep. 1002. The plaintiff
was a brakeman in defendant's em-
ploy on a train in which were sev-
eral flat-cars loaded with cord-wood,
piled in two rows, lengthwise, on
each car. At each end of a row of



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

§ 4366. Defects in Can on Repair-Tracks. — The rule that a rail-
road company owes the duty towards its employes of keeping its ears
in a reasonably safe condition, does not aj>ply in the case of a car
which has been placed upon a repair-track for the purpose of being
repaired, because the placing of the car on such a track is of itself
notice to employes that it is defective. 28

§ 4367. Bolt Projecting Too Far from the Bottom of a Car. — A

court refused to impute negligence to a railroad company because the
foreman of its repair-shop selected a bolt to be driven through the
floor of a car, which was one inch longer than was needed, where
bolts were frequently used somewhat longer than were required, and
where a bolt of a proper length would project an inch and a half
below the bottom of the car. 29

§4363. Evidence of Negligence, Proximate Cause, Instructions,
and Other Questions Eelating to the Use of Defective Cars. — Evi-
dence merely that a train parted while going down grade because of
the loss or absence of the key to a bolt holding thadrawhead of a car
in position, is not sufficient to justify a recovery for the death of a
railroad brakeman on the ground of defective appliances, where there
is ako evidence that the train had gone up, grade at many places, and,
if the key to the bolt had been out of place, would necessarily have
parted while going up grade, and that keys of such bolts are frequently
lost on all railroads, though not defective, and there is no evidence
when or where it was lost; the inference being that it got out of place

wood were two upright stakes, serv- was held there was not sufficient
ing to keep the wood in place. The evidence to sustain a verdict in fa-
lower ends of the stakes rested in vor of the plaintiff: Jones v. Chi-
iron sockets. It was the usual cus- cago Ac. R. Co., 80 Minn. 488; a. c.
torn of brakemen, when ascending 83 N. W. Rep. 446; 49 L. R. A. 640
or descending from the top of these (stakes were live maple covered
piles, to seize and rely on these with bark, 5 or 6 inches in diameter
stakes, which were always put in originally, and trimmed down to
place by the shippers, but which at 4x5 inches to fit socket),
once became car appliances. The a Brown v. Chicago &c. R. Co., 59
plaintiff walked along on the top Kan. 70; s. c. 52 Pac. Rep. 65; 11
of the wood, attempted to descend Am. ft Eng. R. Cas. (N. S.) 408
to the car floor, seized one of these (brakeman injured on account of
stakes, and it broke and he was its ' defective coupling-apparatus
thrown down, receiving injuries, while trying to uncouple it from an-
The stake was somewhat rotten at other car).

its core, but was not shown to be "Holtz v. Great Northern R. Co.,

rotten or defective at any other 69 Minn. 524; s. c. 72 N. W. Rep.

point There was no evidence that 805 (employ 6 on duty under the car

the defendant had notice of the de- came in contact with the bolt,

feet, or in the exercise of 'ordinary which was too long, and was In-

care should have discovered it. It jured).



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

just before the train parted. 80 The failure to equip a car with an
automatic coupling-device, by reason of which a car-coupler was
obliged to go between the cars, where he was crushed, is a proximate
cause of the accident, though the cars were forced together by the
negligent kicking of other cars against them. 81 Evidence of negli-
gence has been discovered in the fact that freight-cars are operated in
a railway-train having an oval or rounded top, without any runway
upon them, and higher than other cars in the train, where the train
is not equipped with air-brakes, so that the brakemen will have to
move about over the top of the cars in the discharge of their duties. 82

§ 4869. Federal Statute Requiring Hand-holds on Freight-Curs. —

The Federal statute regulating interstate commerce 83 requires every
car engaged in such business to be furnished with hand-holds. It has
been held that a train operated by a railroad company engaged in the
transportation of freight across an entire State, and for a considerable
distance within another, is a "through train," within the meaning of



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 69 of 165)