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Commentaries on the law of negligence in all relations online

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by the escape of a freight-car from
a side-track on to the main track,
whereby a collision occurred, if the
car was negligently allowed to re-
main without sufficient braking or
blocking, though some unknown
person contributed to the accident
by unbraklng the car; and hence an
instruction exonerating the com-
pany from liability if the jury
found interference by such third
person is properly refused ; there be-
ing evidence that the station-agent
had been notified the night before
that the cars had been unloaded,
and that by the rules of the com-
pany it was his duty under such
circumstances to see that the cars
were properly braked and blocked,
but that he had neglected to see
whether this had been done: Gal-
veston Ac. R. Co. v. Johnson, 24
Tex. Civ. App. 180;. s. c. 58 S. W.
Rep. 622. Railroad employes were
loading a car with lumber while
the same was standing on the main
track on a grade in a mountain
country. The car had a brake at
each end, both of which were set
When the car was almost loaded,
and the employes were resting on
and about it, a sudden click was
heard, and the car started down the
grade, and, obtaining a great speed,


collided with a hand-car on which
plaintiff's intestate was riding, in
the pursuit of his duties as an em-
ploye of the railroad company.
After this collision an examination
was made of the brake, and it was
found to be in good order, except
that the pawl would not catch well
in the brake ratchet, but could
easily be made to do so by pressing
it down with the foot; but there
was no evidence that it was defect-
ive before the collision, which
knocked the end of the car out. It
was held that there was not suffi-
cient evidence of negligence on the
part of defendant to go to the jury,
and that a verdict for the defendant
was properly directed: Ketterman
v. Dry Fork R. Co., 48 W. Va. 606;
s. c. 37 S. E. Rep. 683. Where the
plaintiff was injured by reason of
some one having placed a push-car
on defendant's railroad-track; and
the car had been left, unlocked, by
the side of the track, by defendant's
servants, — it was held that the ques-
tion of whether negligence was im-
putable to the railroad company
was for the jury: Harris v. Union
Pac. R. Co., 4 McCrary (U. S.) 454
(counsel for plaintiff insisted that
there 4s a well-known disposition
among men to place such an article
as a push-car on the track when
they find it by the side of the track.
— Compare Atchison Ac. R. Co. v.
Slattery, 57 Kan. 499, supra).

"Plunkett v. Central Ac. R. Co.,
105 Ga. 203; s. c. 30 S. E. Rep. 728;
4 Am. Neg. Rep. 622; 13 Am. ft Eng.
R. Cas. (N. S.) 860 (car-sealer at-
tempted to go between two cars,
when the opening was suddenly
closed up).

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toward an experienced section-hand, familiar with the work of the
engine and knowing the danger of crossing the track in front of
moving cars, cannot be predicated of its failure to have a brakeman
on the end of a car pushed by a switch-engine in the railroad-yard;
nor were the servants in charge of the engine required to anticipate
that such an experienced man would attempt to cross tracks in a
yard without looking out for moving cars. 80

§ 4628. Pushing a Car in a Bailway-Tard at Night without Man
or Light upon it. — In a case in New York, the deceased, while return-
ing to the tool-house at night, bearing a lantern, was struck and
killed by a slowly-moving car on a switch-track, there being no light
on the car and no warning given of its approach, but the absence of
light and warning being usual in the yard, and the practice familiar
to the deceased. It was held that he was not entitled to special pro-
tection which he might not be entitled to when engaged in other
business about the yard, but was entitled to only the same protection
and care on the part of the company as he was entitled to when mov-
ing about the yard performing his ordinary daily business; and the
company was not required to place a light or have a man on each car
moved in a switch-yard, or to give warning of its approach. 81

§ 4629. Burning into Misplaced Switches, or Switches Improperly

Set. — A railroad company was held liable for injuries to an employ6
from the derailment of a car, where, in violation of a rule of the
company that the engineer should slow up, and, if necessary, stop
his engine before reaching a switch, to ascertain whether it was
properly set, the person running the engine pushed the cars over the
switch at a rapid rate of speed, when the switch was improperly set,
and caused the derailment and the consequent injury. 82 Where the
person operating an engine on switch-tracks did not look to see the
condition of a switch ahead, but asked another person on the engine

"Lorlng v. Kansas City Ac. R. justice and absolutely brutal, than

Co., 128 Mo. 349 ; s. c. 31 S. W. Rep. the proposition that a railroad com-

6 (the plaintiff, who had been at pany can shunt its cars along its

work on a switch in the yard, had tracks at night with no light upon

left his gang to go for some water), them to apprise its yardmen of

n Crowe v. New York Ac. R. Co., their approach, and with no man

70 Hun (N. Y.) 37; s. c. 23 N. Y. upon them to give warning to those

Supp. 1100; 53 N. Y. St. Rep. 658. who may be on the track in front of

The defendant being the New York them.

Central 6 H. R. R. Co., its habitual M Louisville Ac. R. Co. v. Mothers-
negligence made a standard of duty hed, 97 Ala. 261; s. c. 12 South,
which was tantamount to the law Rep. 714 (negligence of person in
of the land. It would be difficult to charge of an engine on a railway,
state a proposition more careless of under Employers' Liability Act).


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

if the switch was all right, and, on that person looking around as if.
he heard, "took it for granted" that the switch was properly set, and
ran into a car on a side-track, injuring a car-cleaner, the jury were
justified in finding the operator of the engine guilty of negligence,
rendering the employer liable to the car-cleaner for the injury.* 8

§4530. Banning Trains or Hand-Can over Tracks Obscured by
Smoke. — It has been held that a railroad company is not guilty of
negligence toward an employe killed on its track, by starting a train,
in a yard where trains are moving almost constantly, while a dense
smoke has settled down on the track from the locomotive of another
train. 84 Another case holds that the foreman on a hand-car is guilty
of negligence in entering at full speed a track in the company's
yard, obscured by dense smoke, on which a switch-engine is accus-
tomed to be running at all times, without regard to schedule, without
sending a flagman ahead to ascertain if any train is coming on the
track, in accordance with a custom regulating the running of hand-
cars through smoke, and the company is liable to an employ^ on the
car who is thereby injured. 88

Subdivision VI.

Injuries Connected with the Loading and Un-
loading of Cars.


4533. Liability of railway company

to employes for furnishing
defective appliances for
loading and unloading.

4534. Negligence in loading cars.

4535. Further of injuries to em-

ployes from the improper
loading of cars.

" Jensen v. Omaha Ac. R. Co., 115
Iowa 404; s. c. 88 N. W. Rep. 952
(under Code, § 2071). That a yard-
conductor appointed to care for a
switch during the temporary ab-
sence of the regular switchman did
not remain continuously at the
switch during the day did not give
the company Implied notice that the
switch was unattended, so as to
make it liable for injuries to a fire-
man on a train caused by failure to
have the switch closed; since it was
clearly not necessarily incumbent
on the defendant to have a switch-
man there continuously: he might
be absent at times, and still attend



4536. Injury from negligent man-

ner of loading and operat-
ing a logging-train.

4537. Section-men struck by coal

falling from tender of pass-
ing engine.

4538. Injuries in the operation of

loading and unloading rail-

to the switch at the proper times.
The extent of the duty the defend-
ant owed the plaintiff was only to
provide a competent man during the
absence of the regular switchman:
Parker v. New York Ac. R. Co., 18
R. I. 773; s. c. 30 Atl. Rep. 849 (neg-
ligence of yard-conductor while act-
ing as switchman was that of a fel-
low servant with fireman on train).

14 Moore v. Great Northern R. Co.,
67 Minn. 394; s. c. 69 N. W. Rep.

"Woodward Iron Co. v. Andrews,
114 Ala. 243; s. c. 21 South. Rep.
440 (negligence of superintendent —
under Employers' Liability Act).

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Section Section

4539. Loading a car in which an ex- 4541. Other Injuries received in

press-guard travels. loading and unloading, not

4540. Running down workmen en- connected with railway

gaged in unloading cars. service.

§ 4533. Liability of Eailway Company to Employes for Furnishing
Defective Appliances for Loading and Unloading. — A master — for
example, a railway company— owes to his servant the duty of keeping
in a reasonably safe and secure condition, a stage or platform con-
structed for the use of men engaged in unloading coal-cars standing
on a trestle. 1 A liability on the part of the master has been predi-
cated upon the act of a railway company in leaving, for several years,
a log not bolted down, but tied with a chain in the middle, as the sole
barrier at the end of a railroad-track on an elevated wooden wharf,
on which coal^ars were run to be unloaded, where an employ6 was
killed by the breaking of the barrier when cars, running slowly, be-
came detached from the engine and struck the barrier while he was
trying to set the brakes. 2

§ 4634. Negligence in Loading Cars. — These principles have been
frequently applied so as to charge railway companies with liability
for damages in so negligently loading their cars 3 as to injure their
employes engaged thereon or thereabouts in the performance of their
duties, — as where a car is so loaded that a brakeman cannot have
reasonably safe access to the brakes; 4 or where a railroad company
loads a car with lumber or iron projecting over the end of it, so as to
make it dangerous to brakemen engaged in coupling and uncoupling,
or negligently accepts a car so loaded for transportation from another
company; nor will the fact that the manner of loading cars which
a railroad company has adopted is customary with railroads generally,
relieve the company from liability for injuries to a servant received in
consequence of such manner of loading where it is plainly negligent ;•
for here, as in many other cases, a bad custom will not excuse negli-
gence. Contrary to this, another court has held that the loading of
a car with lumber extending longitudinally over its ends is not

1 Selleck v. Langdon, 55 Hun (N. Seeley, 54 JCan. 21; s. c. 37 Pac.

Y.) 19; s. c. 28 N. Y. St. Rep. 326; Rep. 104.

8 N. Y. Supp. 573; Behm v. Armour, * Irvine v. Flint Ac. R. Co., 89

58 Wis. 1; s. c. 15 N. W. Rep. 806. Mich. 416; s. c. 50 N. W. Rep. 1008.

• Norfolk Ac. R. Co. v. Oilman, 88 • Jacksonville Ac. R. Co. v. Gal-
Va. 239; s. c. 15 Va. L. J. 574; s. c. vin, 29 Fla. 636; s. c. 16 L. R. A.
13 S. E. Rep. 475. 337; 11 South. Rep. 231.

* Dougherty v. Rome Ac. R. Co., 'Hosic v. Chicago Ac. R. Co., 75
45 N. Y. St. Rep. 154; s. c. 18 N. Y. Iowa 683; s. c. 37 N. W. Rep. 963.
Supp. 841; Atchison Ac. R. Co. v.

VOL. 4 THOMP. NEG.— 37 577

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

negligence per se, but, if it is negligence in a particular case, that it
must be proved as a fact, in order to make it a case for a brakeman
injured in making a coupling in consequence of this manner of
loading. 7 Another court, taking the same view, reasons that it must
appear that the conductor or other person in charge of the train
knew, or by the use of ordinary care could have known, that the car
was so improperly loaded as to imperil the life of the servant or
employ6. 8

§ 4636. Further of Injuries to Employes from the Improper Load-
ing of Can. — Railway companies have been held liable for the death
or injury of their servants under the following circumstances: — For
the death of an employ^ while loading with heavy lumber cars stand-
ing on a spur or side-track, caused by the fall of the lum-
ber on him in consequence of a jolt produced by coupling
the car in which he was at work, without notice to him; 9
where the yardmaster, who had control of the loading of
freight-cars in the yard and was required to inspect them to see
that they were properly loaded and staked, discharged his duty
in an improper manner, so that he broke one of the stakes, causing
several heavy joists to fall on an employ^ of the shipper, — and this,
although the loaded car had not been formally reported as ready for
shipment by the shipper in accordance with a custom of the railroad
company, this not conclusively showing that the yardmaster was not
acting within the sphere of his employment; 10 where a brakeman was
killed by steel rails projecting over the end of a' flat-car while he
was making a coupling, where the conductor in charge of the train
observed the condition of the rails thirty hours before the accident,
and it was customary to side-track a car when in bad order, or adjust
the rails so that they would- not project beyond the end of the car, —
and this although the conductor warned the brakeman to be careful

T Louisville Ac. R. Co. v. Gower, held In Jackson v. Missouri Pac. R.

85 Tenn. 465; s. c. 3 S. W. Rep. 824. Co., 104 Mo. 448; s. c. 16 S. W. Rep.

To the same effect, see Dewey v. 413.

Detroit ftc. R. Co., 97 Mich. 329; 'Ragland v. St. Louis Ac. R. Co.,

8. c. 56 N. W. Rep. 756; 22 L. R. 49 La. An. 1166; s. c. 22 South. Rep.

A. 292; 38 Cent. L. J. 31; rev'g on 366.

rehearing, s. c. 52 N. W. Rep. 942; "Pollard v. Maine Ac. R. Co., 87

16 L. R. A. 342 (no off. rep.). Me. 51; s. c. 32 Atl. Rep. 735. The

'Louisville Ac. R. Co. v. Brice, court reasoned that the nature of

84 Ky. 298; s. c. 1 S. W. Rep. 483. the employment, the character of

That a railroad company is not the service required, the character

guilty of negligence toward a brake- of the act done, the circumstances

man ordered to remove cars from under which it was done, and the

a side-track, in leaving upon such ends and purposes sought to be at-

track a car loaded in the customary tained, were all material considera-

manner with railroad-iron project- tions and formed the real test of

ing over the end of the car, was liability.


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in making the coupling; 11 where, in loading a car with boxes of
cinders, the boxes should have been placed with their backs together
in the middle of the car so that the men could have tilted them by
means of the handles on them, but they were placed with their backs
to the edge of the car, making it necessary to use levers to move them,
and rendering it necessary to drop them to the ground in order to
unload them, and a section-hand was injured while attempting to get
tliem in position for unloading, — this being deemed sufficient to
show that the improper loading of the boxes was the proximate cause
of the injury; 12 where a railroad company employed upon a car a
decayed, rotten, dozy stake to hold the binders of lumber upon the
car, in consequence of which the stake broke and the lumber projected
from the car, injuring a brakeman on another train ; 18 where a brake-
man was knocked off a moving car by the fall of a rail from the car,
due to defects in the car and to the improper loading of the rails
which were upon it. 14

u Corbin v. Winona Ac. R. Co., 64
Minn. 185; s. c. 66 N. W. Rep. 271
(question for jury).

"Devore v. St Louis &c. R. Co.,
86 Mo. App. 429.

"Ryan v. New York Ac. R. Co.,

88 Hun (N. Y.) 269; s. c. 68 N. Y.
St Rep. 260; 34 N. Y. Supp. 665.

M McCray v. Galveston 4c. R. Co.,

89 Tex. 168; s. c. 3 Am. & Eng. R.
Cas. (N. S.) 276; 34 S. W. Rep. 95;
rev'g s. c. 32 S. W. Rep. 548 (brake-
man sitting on the side of a car
in a train killed by a Bteel rail,
part of the load of a car in front
of him, falling therefrom, one end
striking the ground and the other
end sweeping along the side of the
train and striking him; circum-
stances sufficient, without other
proof of negligence in loading the
car, to take the case to the jury,
and it was error to direct verdict
for defendant). A finding that
cars were improperly loaded is sus-
tained by evidence that the space
in each car intended for the brake-
man to stand in while handling the
car was partially covered with lum-
ber: Irvine v. Flint Ac. R. Co., 89
Mich. 416; s. c. 50 N. W. Rep. 1008
(coal-cars, so constructed as to
leave a space of fifteen inches
across the brake end of each car,
were so loaded with lumber as
to cover the spaces partially,

and so as to leave a space of
but fifteen inches between the lum-
ber on each car and the car
coupled to it, at the top surface of
the lumber). There is a seemingly
untenable decision to the effect that
to load a tender with coal above the
level of its top is not negligence
per se; and notice to the railroad
company that its employes were in
the habit of so doing, without
knowledge or notice that such prac-
tice was dangerous, is not sufficient
to make the company liable for an
accident to a track-walker by coal
falling on him resulting from such
method of loading: Schultz v. Chi-
cago Ac. R. Co., 67 Wis. 616. Com-
pare, on the same question, Croll
v. Atchison Ac. R. Co., 57 Kan. 548;
rev'g s. c. sub nom. Atchison Ac. R.
Co. v. Croll, 3 Kan. App. 242, where
the Supreme Court of Kansas, dis-
agreeing with the Appellate Court
and affirming the District Court,
considered the fact that coal was
piled up on the flange of the tender
of a locomotive to be evidence tend-
ing to show that the tender was
overloaded generally — in the center
as well as on the edge, and that
the chunk of coal which fell off, in-
juring an employ^, might well be
regarded as having fallen from the
center of the tender.


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

§ 4636. Injury from. Negligent Manner of Loading and Operating
a Logging-Train. — A lumber company operating a logging railroad
was not as matter of law free from negligence in operating a train
on a down-grade with no brakes except the one on the engine, and
in failing to have standards on the car on which an employ6 who was
killed by a log rolling off was riding, and in failing to stop the train
immediately upon the occurrence of the accident, which took place
in plain view of the engine. 15

§ 4637. Section-Men Struck by Coal Falling from Tender of Pass-
ing Engine.— Negligence may be predicated upon the act of a rail-
road company in heaping a locomotive-tender with coal several feet
above the level of the top of the tender and above its flange on the
outer edge, so that it is liable to fall off very easily while going over
an uneven track, where it does fall off, striking and injuring a work-
man who is engaged in ditching by the side of the track. 1 * Where
a piece of coal fell off a passing train and injured a section-hand who
was standing near the track, the court declined to follow the argu-
ment that the company was not liable because the injury was not
such a result of the company's alleged negligence in improperly load-
ing the tender as might reasonably have been anticipated. The
court said: "The question is not whether an accident of this char-
acter ever happened before, but rather, whether, under the circum-
stances of this case, the falling of a large lump of coal, propelled
with great force by reason of the speed of the train, might reasonably
be expected to strike and injure some person along the track where
he had a right to be." 17

§ 4638. Injuries in the Operation of Loading and Unloading Rail-
way-Cars. — A railway company was chargeable with negligence in
using chains to connect its cars, in the absence of a drawhead, by rea-
son of which the cars came in contact, so that an iron rail projecting
from one of them injured an employe* engaged in unloading the other
who had never before worked on a railroad ;" where its foreman of a
section-gang engaged in loading ties upon its cars failed to adopt
any extra precaution to guard against accident to a member of the

"Fleming v. Greenleaf -Johnson Pac. Rep. 112. Compare Schultz v.

Lumber Co., 128 N. C. 532; s. c. 39 Chicago Ac. R. Co., 67 Wis. 616.

S. E. Rep. 43. "Gulf Ac. R. Co. v. Wood (Tex.

"Croll v. Atchison. Ac. R. Co., 67 Civ. App.), 63 S. W. Rep. 164 (no

Kan. 648; s. c. 46 Pac. Rep. 972; off. rep.).

rev'g s. c. sub nom. Atchison Ac. R. u Lucco v. New York Ac. R. Co.,

Co. v. Croll, 3 Kan. App. 242; 45 87 Hun (N. Y.) 612; s. c. 68 N. Y.

St. Rep. 156; 34 N. Y. Supp. 277.


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gang placed in a car in such a position that, at times, he could not
see what was being done by those engaged in throwing ties over the
side of the car, in consequence of which he was hurt by one of the
ties, provided such tie was not thrown with the regularity with which
the work had theretofore proceeded. 19

§4639. Loading a Car in which an Express Guard Travels. —

The duty to furnish a safe place to work, which an express company
owes to a servant employed to ride in one of its cars as a guard, ex-
tends only to the construction and equipment of the car ; the loading
of express-matter by the express messenger in a dangerous manner is
not a breach of this duty, being within the scope of his ordinary du-
ties as a servant, and in regard to which he and the guard are fellow
servants. 20

§ 4540. Banning Down Workmen Engaged in Unloading Cars. —

A railroad company is bound to use reasonable care not to run* down 1
any of a gang of workmen who, to its knowledge, are engaged in un-
loading cars for an elevator company in a public place (on a public
wharf), where they were left by the railroad company for the con-
signee of freight contained therein. 21 In another case, the railroad

" Claybaugh v. Kansas City Ac. R.
Co., 56 Mo. App. "630. Where plain-
tiff was injured while he and three
other employes of the defendant
railway company were attempting
to load a heavy timber on a car
under the direction of a "boss," and
there was no evidence that the de-
fendant knew, or ought to have
known, that the timber was too
heavy to be loaded by them, or that
they would attempt to load it, and
plaintiff himself testified that he
thought they could do it safely, the
defendant cannot be considered neg-
ligent, and a nonsuit should have
been granted: Bryan v. Southern
R. Co., 128 N.jC. 387; s. c. 38 S. E.
Rep. 914. Another court holds that
an employer who furnishes suitable
and sufficient rope to be attached
to a plank used in transferring
freight from a pier to a car, and
boards suitable to be used at the
ends of the planks if thought ad-
visable, is not liable for an injury
to an employ^ caused by the break-
ing of the rope while attempting to
transfer freight over such plank,
which breaking was due to the 'use
of an old rope and the failure to

place boards at the end of the plank
for the truck on which the freight
was carried to run upon. Though it
was the duty of the foreman to see
that the plank was properly secured,
his negligence was in connection
with a mere detail of the work, and
was that of a fellow servant: Con-
way v. New York Ac. R. Co., 13
Misc. (N. Y.) 53; s. c, 68 N. Y. St.
Rep. 97; 34 N. Y. Supp. .113; rev'g
s. c. 11 Misc. (N. Y.) 641; 66 N. Y.
St Rep. 347; 32 N. Y. Supp. 921.
Contract between independent con-
tractor and a railroad company
whereby the contractor was to load
cars placed at railroad company's
elevator, and evidence upon which
contributory negligence was im-
puted to the servant of the con-
tractor -who was injured by reason
of cars moving down an incline be-
hind him: O'Leary v. Brie R. Co.,
51 App. Div. (N. Y.) 25; s. c. 64 N.
Y. Supp. 511.

"Wells, Fargo & Co. v. Page, 29
Tex. Civ. App. 489; s. c. 68 S. W.
Rep. 528.

* Spotts v. Wabash Ac. R. Co., Ill

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 81 of 165)