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Commentaries on the law of negligence in all relations online

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of the company, since the proper inspection and reparation of such
cars is one of the absolute duties which the law puts upon the master
in favor of his servant. 1

§ 4446. Instances of Liability for Failing to Perform this Duty. —
It was so held where a railroad company furnished its employes with
a hand-car which had a handle of brash and brittle wood, which con-
dition the employ^ could not detect by reason of its being painted,

"Missouri &c. R. Co. v. Holman, Chicago &c. R. Co. v. Artery, 137

16 Tex. Civ. App. 16; s. c. 39 S. W. U. S. 507; s. c. 34 L. ed. 747; 11

Rep. 130. Sup. Ct. Rep. 129; 44 Am. ft Eng.

1 Northern Pac. R. Co. v. Charless, R. Cas. 573 (under Iowa Code 1873,

2 C. C. A. 380; s. c. 51 Fed. Rep. § 1307).
562; 61 Am. ft Eng. R. Cas. 198;


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

and by reason of the fact that he was near-sighted, where the handle
broke, injuring him; 2 where a hand-car had been injured in a col-
lision, and the foreman failed to discover the injury by reason of neg-
lecting an inspection, but caused the car to be used the next day, in
consequence of which an employ^ of the company was injured ; 3 where
a hand-car was derailed in consequence of the slipping of the cage on
the pinion-wheel, which was too small, so that the cage caught, binding
the car to a rail as it was going up grade on a curve ; 4 where, owing
to a defect in the handle of a hand-car which was not discoverable by
casual observation, but which would have been detected by a proper
inspection, it broke, causing an employ^ who was working it to fall
from the car, in consequence of which he was run over by another
hand-car closely following, — the defect being deemed the proximate
cause of the injury. 6

§ 4447. Instances where there was Ho such Liability. — But where
a steam-car jumped the track, injuring an employ^ of the company
riding thereon, and the evidence left the cause of the accident ob-
scure, and showed plainly that, if there was a defect in the car, the
injured employ^ must have been aware of it, and he had never made
any complaint to the company,— it was held that there could be no re-
covery. 6 Nor was a railroad company liable to an employ^ injured by
falling from a hand-car which he was assisting to operate, due to the
breaking of a handle by. which the lever was worked, owing to a de-
fect which was in such a place, relatively to the socket of the lever
through which the handle passed, as not to be apparent, in the ab-
sence of actual knowledge of the defect by the company. 7 Nor is a

* Siela y. Hannibal Ac. R. Co., 82 die, having previously become
Mo. 430. loose, had, under the direction of

3 Solomon R. Co. v. Jones, 30 Kan. the section-boss, been secured by a

601. nail, and tending to show that a

4 Evans v. Delk (Tex.), 9 S. W. screw would have been proper and

Rep. 550 (no off. rep.). much safer, was sufficient to au-

• Banks v. Wabash Ac. R. Co., 40 thorize the submission of the case
Mo. App. 458. Condition of fact un- to the jury; there being no evidence
der which, the hand-car being old to show that plaintiff had any rea-
and so worn out that the wheels son to apprehend danger: Louis-
played back and forward, it was er- ville Ac. R. Co. v. Miller, 22 Ky. L.
ror to give a peremptory instruction Rep. 327; s. c. 57 S. W. Rep. 230
for the defendant, there being no (no off. rep.).

evidence that the defect was known • McQueen v. Central Branch Ac.
to the plaintiff: De Hart v. Chesa- R. Co., 30 Kan. 689.
peake Ac. R. Co., 24 Ky. L. Rep. T Louisville Ac. R. Co. v. Hinder,
431; s. c. 68 S. W. Rep. 647 (no off. 16 Ky. L. Rep. 841; s. c. 30 S. W.
rep.). Where an employe^ in oper- Rep. 399 (no off. rep.) (defect was
ating a hand-car, was injured by in that part of the handle fastened
reason of the handle becoming in an iron socket, and could not
loose and turning in the socket, have been discovered without re-
causing him to be thrown from the moving the handle),
car, evidence showing that the nan-


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railroad company negligent as matter of law in furnishing to its*
employes hand-cars constructed in the same manner as others of like
make, although different makes are used on some railroads. 8

§4448. Liability for Injuries to Employes in Operating Hand-
Cars. — Outside of any question as to the obligation of the railroad
company to provide safe hand-cars for its employes, it has been held
that, where a section-hand in the employ of defendant company, while
in the performance of his duties, took a hand-car off the track to allow
a train to pass, and while standing near it was struck in the eye by
steam and water thrown from the passing engine, — he had a cause of
action. 6 Whether a railroad company is guilty of negligence making
it liable for the death of an employ^ thrown to the ground by a col-
lision between the hand-car on which he was riding, and one in
advance of it, due to the section-boss causing them to be run too close
together across a bridge and directing the checking of both at the
same time, and the sudden application of the brake on the rear car
jerking the handle from such employ^, so that when the two hand-
cars collided he was thrown off and killed, was a question for a jury. 10
A section-foreman is not, as matter of law, guilty of negligence in
giving at the same time a signal to check the speed of two similar
hand-cars fifteen or twenty feet apart, running over a bridge at the
same rate of speed, so as to make the company liable for an injury
to a section-hand on the rear car, caused by a collision with the front
car. 11 A railroad section-hand, while returning from his day's work
on a hand-car, was injured by another hand-car coming from behind
it, carelessly propelled by other employes of the company. It was
held that a statute 12 making railroad companies liable for damages
to employes in consequence of the negligence of agents, or of the
mismanagement of other employes, applied to the case, and that the
injured section-hand was entitled to recover damages. 18 Evidence that

•Hamilton v. Chicago Ac. R. Co., 113; 15 Am. ft Eng. R. Cas. (N. S.)

93 Iowa 46; s. c. 61 N. W. Rep. 415 752; 25 South. Rep. 814.

(so constructed that part of the u Alabama ftc. R. Co. v. Jones,

lever machinery was enclosed in 121 Ala. 113; s. c. 15 Am. ft Eng. R.

the tool-box, there being plenty of* Cas. (N. S.) 752; 25 South. Rep.

room at each side of the box, but 814; s. c. on former appeal, 107 Ala.

none in the center of the front 400; 18 South. Rep. 30.

when the car was in motion; em- "Kan. Gen. Stat. 1901, § 5858;

ploye* attempted to put his mittens Laws 1874, ch. 93, § 1. See post,

into the tool-box, and the car was § 5296.

started, catching his hand). "Union Trust Co. v. Thomason,

• Atchison ftc. R. Co. v. Thul, 32 25 Kan. 1 (statute held to apply on-

Kan. 255. ly to employes exposed to the haz-

10 Jones v. Alabama ftc. R. Co., ards of railroading, but this does

107 Ala. 400; s. c. 18 South. Rep. not mean those alone who are en-

30; 8. c. on second appeal, 121 Ala. gaged in running trains; following

vol. 4 thomp. rro.— 34 529

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

railroad employes running a hand-car at a high rate of speed on a
down-grade and slippery track only sixty feet behind another hand-
car, where the usual distance at which hand-cars are kept apart is
five hundred and forty feet, and where, at the rate they were going,
they could not have stopped within one hundred feet; so that, when
plaintiff fell off the front car, those in the rear were unable to stop
in time to avoid running over him, — is sufficient to justify a finding
by the jury that those on the rear car were guilty of negligence which
caused the injury. 14 A foreman, occupying under the Missouri doc-
trine the place of vice-principal, has been held guilty of negligence in
directing a water-keg to be placed at the front end of a hand-car on
which he is riding with the hands under him, to be used by him as a
seat from which to keep a lookout, and leaving it where it is liable to
roll off in front by the motion of the car, while he assists the men in
operating the* car." A hand-car is within the meaning of a statute of
Texas, 16 providing that railroad companies shall be liable for all dam-
ages sustained by any servant or employ6 while engaged in the work
of operating their "cars, locomotives, or trains" by reason of the neg-
ligence of any other servant or employ^, and that the fact that such
servants or employes were fellow servants shall not destroy such liabil-
ity. 17 In the opinion of the Supreme Court of the United States, the
doctrine as to the duty of the master to furnish a safe place for the
servant to work, has no application to the failure of a foreman in
charge of a hand-car to watch for an approaching train, when the car
itself is in every way fit for the purpose for which it is used; but
such failure is the negligence of a fellow servant of an employ^ on the
hand-car injured in a collision with such train, which was backing. 18

the construction of the Iowa act, Fed. Rep. 728; s. c. 52 C. C. A. 360.

which is similar— see post, §§ 5294, See post, § 5307.

5295). u Martin v. Atchison Ac. R. Co.,

u Christianson v. Chicago Ac. R. 166 U. S. 399; s. c. 41 L. ed. 1051;

Co., 67 Minn. 94; s. c. 2 Chic. L. J. 17 Sup. Ct. Rep. 603 (the plaintiff

Wkly. 86; 69 N. W. Rep. 640. had noticed the work-train start-

"Russ v. Wabash ftc. R. Co., 112 ing out from a station some dis-

Mo. 45; s. c. 18 L. R. A. 823, 20 S. tance away, and had spoken to the

W. Rep. 472. His negligent act in foreman about it, who instructed

having the keg placed where he did plaintiff to keep his eyes to the

was held to be in the performance front and mind his own business,

of duties devolved upon him by the and that he, the foreman, would

master; and his getting up and take care of approaching trains),

leaving the keg unsecured was held Railway trainmen were deemed

to be a failure in the performance guilty of negligence in running a

of the duty devolved upon him of train at an excessive rate of speed

looking after the safety of his men: around a curve in an obscure place.

Russ v. Wabash &c. R. Co., supra. without sounding the whistle as re-

16 Sayles' Tex. Civ. Stat. 1897, art. quired by a rule of the company, so

4560f ; Acts Spec. Sess. 1897, p. 14, as to render the company liable for

§ l. the death of a section-foreman free

1T Texas &c. R, Co. v. Smith, 114 from contributory negligence, in a


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Article XV. Various Injuries to Railway Employes in
Operating Engines and Cars.

Subdivision I. Moving of Trains.


4450. Rules and regulations.

4451. Discretion of a railroad com-

pany as to methods of di-
recting the movements of
its trains.

collision between the train and a
hand-car on which he was riding.
But the section-foreman was guilty
of contributory negligence, in that
he failed to obey an instruction
which required him to flag around
all curves, which, had he done so
on this occasion, would have pre-
vented the collision. Judgment for
plaintiff reversed, the evidence
clearly showing disobedience of the
rule: Southern Pac. Co. v. Ryan
(Tex. Civ. App.), 29 S. W. Rep. 527
(no off. rep.). Case of injury re-
ceived by a section-man in assisting
other section-men to lift a hand-car
from the track to get it out of the
way of a train which suddenly ap-
peared around a Airve at a high
rate of speed, without warning,
where one of the lifters lost his
nerve and let go his hold, thereby
throwing extra wefcht upon and in-
juring the plaintidfby giving him a
sprain in the baoJc, where the evi-
dence was held sufficient to sustain
a finding that the negligence of the
company was the proximate cause
of the injury: International Ac. R.
Co. v. Newburn, 94 Tex. 310; s. c.
60 S. W. Rep. 429; afTg s. c. (Tex.
Civ. App.), 58 S. W. Rep. 542 (no
off. rep.). Case where a section-
hand sustained injuries by being
thrown from an overcrowded hand-
car, and it was held that the ques-
tion of negligence in overcrowding
the car was for the jury: Ha worth
v. Kansas City ftc. R. Co., 94 Mo.
App. 215; s. c. 68 S. W. Rep. 111.
A railway company operated a rail-
road in Wisconsin, and engaged a
bridge-gang to operate from West
Superior for the reconstruction of
bridges along its line. The com-
pany agreed, as part of the consid-
eration, to transport the men back
and forth between West Superior


4452. Changing the running-time.

4453. Running trains in sections.

4454. Running trains too close to

each other.

and the station nearest the place of
their day's labor by means of regu-
lar trains; and for the transporta-
tion back and forth between the
station and their place of work it
furnished hand-cars to be propelled
by the men. Plaintiff was riding
on a hand-car from the place of
work to a station where they could
board defendant's train back to
West Superior, and another hand-
car, propelled by another member
of the crew, overtook the first car
and was negligently propelled, derailing it and injuring
plaintiff. One of the handles on the
front end of the rear car, intended
to be used in lifting the car from
the track, was broken off, and be-
cause of its absence the other han-
dle on the same end of that car
caused the preceding car to be
pushed laterally and 'derailed. The
company had not provided any
rules or regulations to control the
running of hand-cars on its track.
It was held that plaintiff and the
other members of the crew were
employe's of the railway company
and engaged in their duties as such
at the time of the injury, and that
plaintiff's complaint, setting forth
the above facts, stated a cause of
action; in that defendant was guil-
ty of negligence in failing to pro-
vide suitable rules, etc. ; and for the
further reason that the defective
handle might have been the proxi-
mate cause of the accident under
the circumstances, as the company
might reasonably have anticipated
that some accident would result
from its absence, though it might
not have anticipated the particular
accident: Wallin v. Eastern R. Co.,
83 Minn. 149; s. c. 86 N. W. Rep.
76; 54 L. R. A. 481.


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


4455. Sending out an irregular or

"wild" train without notice
to track-repiirers and oth-

4456. Double track— Running a

train on the wrong track.

Breaking in two of a train.

Locomotive or train starting
with a sudden jerk.

Stopping suddenly and with-
out warning.

Instances where negligence
was not imputed to the act
of stopping suddenly and
without warning.

Allowing fireman to run loco-

4462. Obstructions dn the track.

4463. Running train backwards.

4464. Pushing cars too suddenly
against other cars.

Attempting to move car which

has run off the track.
Failure to have loottbut on

rear of backing train.
Illinois statute requiring

brakeman on rear car of

Other statutory precautions —
"Lookout on engine/' etc.
Running a train without a












4470. Conductor temporarily leav-

ing train in charge of en-

4471. Negligence of railroad con-

ductor in failing to instruct
brakeman before tempo-
rarily leaving train.

4472. Cutting off cars.

4473. Making up a train so that a

lumber-car is the first car
in the train.

4474. Failure to keep a lookout


4475. Running down hand-cars and

push- cars.

4476. Running over switchmen.

4477. Running a train rapidly

around a curve upon sec-

4478. Running down track-repairers

at work on the track.

4479. Running over bridge watch-


4480. Running down employes using

railway-tracks as passways.

4481. Right of fngineer to assume

that section-men will be
on the lookout and get out
of the way.

4482. Employ 6 svuck by a man or

an animal thrown from the
track. |

4483. Injuries on the tracks of other


§4450. Bules and Begulations. — A railroad company must not
only adopt, but also use reasonable care to enforce, adequate rules for
the running of its trains. 1 Where, in an action to recover damages for
alleged negligence, causing the death of the plaintiff's intestate, it ap-
peared that the death resulted from a collision in the night-time be-
tween a freight-train on which the deceased was employed as fireman
and an engine left standing on the defendant's main track, in viola-
tion of one of its rules, by its engineer while waiting for orders ; and

1 Nolan v. New York Ac. R. Co., 70
Conn. 159; s. c. 43 L. R. A. 305; 39
Atl. Rep. 115 (but in this case the
failure to flag a following extra
train, whereby an employe on the


latter was killed, was due wholly to
the negligence of a brakeman on the
preceding train, and not to the neg-
ligence of defendant).

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there was evidence that such engineer and other engineers had for at
least a year been in the habit of frequently disobeying such rule, — the
complaint should not have been dismissed, but the question of the de-
fendant's negligence should have been submitted to the jury ; since a
railroad company does not discharge its whole duty by framing and
publishing rules for the conduct of its business and the guidance and
control of its servants ; but must exercise such supervision over them
and the prosecution of its business as to have reason to believe that its
rules are being observed. 2 It is the duty of a railway company to es-
tablish regulations which will advise its servants moving cars at a sta-
tion as to the presence of other employes at work on the cars and
liable to injury from the movement of cars on the switch-tracks. It
should also provide means by which employ6s on such tracks may be
notified of the approach of moving cars. Such regulations should be
published and made known to its employes ; and the company cannot
avail itself of a rule which it has not properly published, and which it
has uniformly neglected to enforce. 8 When rules and regulations es-
tablished by the master are habitually disobeyed, with the knowledge
or express consent of the master, or have been disregarded without his
express consent in such a manner and for such a length of time as to
raise a presumption that the master (whose duty it is not only to make
and promulgate, whenever engaged in a business of such a nature as
to require it, suitable rules and regulations for the protection of his
servants, but also to use due care and diligence to have them enforced)
must have become aware of such habitual disregard and approved the
same, such rules and regulations will be disregarded. But evidence
showing such a violation (in this case of a rule as to running trains
between stations) on only two occasions, one of them being the occa-
sion of the accident, is not sufficient to show an abrogation of the
rule. 4 Where the cars of a work-train were being pushed before the

* Whittaker v. Delaware Ac. Canal (action by locomotive-engineer in-

Co. t 126 N. Y. 544; s. c. 27 N. B. Rep. jured by ■ explosion of boiler; de-

1012; 38 N. Y. St. Rep. 523; aff'g fended on ground that violating a

s. c. 11 N. Y. Supp. 914; 34 N. Y. St rule as to running-time made it

Rep. 822. necessary to overwork the boiler:

'International &c. R. Co. v. Hin- plaintiff attempted to meet an op-

zie, 82 Tex. 623; s. c. 18 S. W. Rep. posing passenger-train at the next

681 (employ 6 painting cars injured station and allow it five minutes' •

by reason of cars being kicked clearance, as required by a rule, to

against them without warning to do which he had to run five &nd

him; companj had signal-flags for seven-tenths miles in nineteen min-

such employes to protect themselves utes at the outside, the schedule

with, and required them to be used; time for freight-trains being thirty

but plaintiff had never been in- minutes, thirty-five minutes being

formed either of the flags or of the the least time in which it was

rule). usually attempted when running

'Konold v. Rio Grande Ac. R. Co., against a passenger-train).
21 Utah 379; s. c. 60 Pac. Rep. 1021

x 533

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

engine, the failure to post & flagman on the leading car to warn the
engineer of approaching danger, as required by the rules of the com-
pany, constituted negligence on the part of the conductor, who had full
control of the operation of the train, rendering the company liable
for the death of the assistant roadmaster in the collision which re-
sulted; the deceased having had control of the work, but not of the
running of the train. 6

§ 4451. Discretion of a Eailroad Company as to the Methods of
Directing the Movements of its Trains. — A comprehensive dictum of
an enlightened court, as contained in the official syllabus of the case,
is to the effect that the law does not require a railroad company to
direct the movement of its trains by orders from the train-
despatcher alone, nor by a system of signals only ; nor does it require
the company to adopt any particular form of orders, or any particular
system for communicating them; but the company has the right to
direct the movement of its trains by train-orders alone, or by train-
orders of any form and signals, or by signals alone, or by time-card
alone, provided that the means adopted are brought to the knowledge
of its employes, and they are reasonably well calculated to secure the
safety of the men, if obeyed by them. 8 Another case holds that it is
not necessary in all cases, and as matter of law, that information of
the position of other trains on a railroad should be given by the train-
despatcher. Hence, where the evidence was conflicting as to the usual
course of communicating information as to the position of certain
other trains on the road than the one on which the plaintiff was in-
iured, — whether by messages from train-despatchers or by inquiry at

•Rinard v. Omaha Ac. R. Co., 164 eer negligently failed to do: Ken-
Mo. 270; s. c. 64 S. W. Rep. 124. The nelty v. Baltimore Ac. R. Co., 166
death of a brakeman and baggafce- Pa. St. 60; s. c. 36 W. N. C. (Pa.)
master by collision was caused by 50; 30 Atl. Rep. 1014; 25 Pitts. L.
the negligence of the engineer of J. (N. S.) 316.
the following train, a fellow serv- •Hannibal &c. R. Co. v. Kanaley,
ant, and not by an unsafe sched- 39 Kan. 1; s. c. 17 Pac. Rep. 324
ule or defective rules, where the (train-despatcher ordered plaintiff's
engineer of the colliding train re- train to "meet No. 11" at a certain
ceived an order to run two hours place. After one section of No. 11
late, but the schedule of the train had passed, plaintiff's train pulled
• struck would interfere with such out and collided with the second
order, and the general rule required section, which was not mentioned in
following trains to run ten min- the train-order; but it was proved
utes behind the time of the train that the first section had sounded
followed; as it is the duty of the a signal and was carrying lights
trainmen of the following train to indicating that a second section was
look out for the train in advance, following, and that the conductor of
although there is no special order the plaintiff's train heard, saw and
to do so; and since special orders comprehended the signals but disre-
are to be read in connection with garded them),
the general rules, which the engin-


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the stations, — an instruction making it the duty of the company to
give information through its train-despatchers was held to be errone-
ous. 7

§ 4452. Changing the Running-Time. — The duty of giving notice
of a change in the running-time of a railroad-train to those in charge
of the train has been classed with that of exercising reasonable care to
provide a safe place for a servant to work. 7 *

§ 4453. Burning Trains in Sections. — It is not negligence, as mat-
ter of law, on the part of a railroad company, with respect to its em-
ployes, to run a train in three sections five minutes apart, with orders

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 75 of 165)