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W. W. (William Wheeler) Thornton.

A treatise on the Federal employers' liability and safety appliance acts, with similar state statutes and federal statutes on hours of labor online

. (page 69 of 73)
Online LibraryW. W. (William Wheeler) ThorntonA treatise on the Federal employers' liability and safety appliance acts, with similar state statutes and federal statutes on hours of labor → online text (page 69 of 73)
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the testimony of the witness on the part of the defendant
was that he supplied a bolt in the clevis. That does not meet
the case of the Government at all, in my judgment. It is
for you to decide.

Next, as to the missing grab-iron. If I understand the
testimony, the two witnesses for the Government testified
positively that this grab-iron was gone, was missing ; that there
was no grab-iron when it was moved over the line from the
yards in interstate commerce. The only testimony, as I
understand it — I may be mistaken about that — on the part
of the defendant is that at a subsequent time, when some
witness for the railroad company examined this car, it had
a grab-iron. Of course, these two statements can be entirely
reconciled, and it is your duty to reconcile them and, in that
event, to find tliat no witness has testified falsely about it.
It may be that there was no grab-iron on tlie car when it left
Garrett and that there was a grabiron on it at the time this
witness testified he saw it.

On account of the number of counts and the possibility of
some confusion about them, I thought it was my duty to
explain to you just what the situation is as to these three
counts, reminding you again that it is for you to decide the
facts. You do not have to take my view of what the facts
are. You are bound by what the court says as to the law;
but you must determine the facts without reference to what
the court thinks about the evidence.

So, if you, in view of these instructions, find that the Gov-
ernment has, by the fair preponderance of the evidence — that
is, by the greater weight of the evidence — proved the ma-
terial allegations of counts 2, 5, and 7, which relate, respec-
tively, to the kink in the chain, the missing clevis, and the
missing grab-iron, then your verdict should be: We, the
jury, find the defendant guilty. If you find that the Govern-
ment has failed to establish the facts as to either counts 2, 5,
or 1, then your verdict should be: We, the jury, find the



APPENDIX G. G8I)

defendant guilty on those five counts I have menti()n<'(l, and
such of those three counts as you find tlie defendant guilty,
and not guilty on such counts as you find the Government
has failed to prove to your satisfaction by a fair preponder-
ance of the evidence.

Forms of verdict will be sent out with you.



P. E. DAILEY V. SOUTHERN RAILWAY COMPANY.

(In the Circuit C5ourt of the United States for the Eastern District of

Tennessee. )



Decided January 10, 1911.



1. Liability of defendant because it used cars having bumpers when

plaintiff was injured can not be considered by the jury, because the
record herein disclosed that plaintilf had full knowledge of this
fact, and under the doctrine of assumption of risk could not recover;
and the rule of defendant that employees must not go between cars
while they are in motion should be disregarded here, because the
evidence shows that plaintiff was not injured by reason of moving
cars.

2. The burden of proof herein is upon plaintiff to show: (a) Tliat the

interstate car on which he was hurt would not uncouple %vithout a
man going between the cars; (&)that such coupler would not work
when operated in a proper way; and (c) that the failure of the
coupler to work was the proximate cause of the injury. Under
such state of facts defendant's failure to have a coupler equipped
according to the Federal Safety Appliance Acts would be an act
of negligence.

3. If plaintiff in the discharge of his duty went between the cars on

account of the defective coupling in order to make the cmiiiling and
was injured, defendant would be liable; but not so if plaintilf went
between the cars in order to turn a safety cock.

4. If the fact that a coupler does not work, as required by the Safety

Appliance Acts, is due to some temporary condition in which the
ear is placed with reference to otlier cars, or to the movement of
the car or of the train, which could not be avoided in the highest
state of the art, the mere fact that the coupler would not work
under those conditions would not render defendant liable; but the
burden of proving such conditions would be on defendant.

5. While the Safety Appliance Acts prohibit assumption of risk as a

defense, the defense of contributory negligence has not been taken



690 FEDEEAL SAFETY APPLIANCE ACT.

away. Those acts do not excuse an employee from a failure to use
ordinary prudence in his o\\ti behalf, where he knows of the ab-
sence of the proper appliances. After having knowledge that the
appliances are not in the condition required by the Safety Appliance
Acts if the employee is g^iilty of contributory noglij^ence, which
operates as one of the direct causes of the injury which he receives,
then he cannot recover.

C. Contributoiy negligence defeats any recovery at all; it does not cut
doAvn or decrease the amount of the verdict, except in certain cases
not involved here; but the burden of proof in contributory negli-
gence is on defendant.

7. When plaintiff shows that the appliances were defective and in viola-
tion of the Safety Appliance Acts, it is not incumbent upon him to
go further and point out in what respect the appliances were de-
fective or out of repair.

Webb & Baker, for plaintiff.

JouEOLMON, Welcker & Smith, for defendant.

INSTRUCTIONS TO JURY.

Sanford, District Judge (charging .jury) :

The plaintiff, Perry E. Dailey, sues the defendant for per-
sonal injuries, which he received in the year 1908 while in
the employ of the defendant company. The defendant has
moved the court for peremptory instructions. That motion,
I neglected to say, is overruled, and I submit the case to the
jury in certain aspects of the case. In doing so I wish to
say, however, that my action in overruling this motion is
not intended to be taken by you as meaning that the plaintiff
is entitled to a recovery. It merely means that there is such
a conflict in the evidence that I think it is a question to be
passed upon by the jury instead of the court.

In so far as the plaintiff seeks a recovery on account of the
fact that there were bumpers on the car, I withdraw that
question from your consideration ; that is to say, I charge
you that under the undisputed e^^dence, if there be any evi-
dence of negligence on the part of the defendant in regard
to the bumpers, the same evidence would also show that the



APPENDIX G. 691

plaintiff had full knowledge of its having cars on its line with
bumpers, and, under the doctrine of assumption of risk, in-
would be held to have assumed that risk, and consequently
could not recover on that ground. So you will eliminate from
consideration any question of liability in so far as relates to
the bumpers on this car. Also as to the question presented
by counsel with reference to the rule of the company, being
general rule No. 10. This rule has no application to the
facts in this case, as it is in proof that this plaintiff did not
go in between the cars while in motion and that he was not
injured by reason of the motion of tlie engine, and you may
hence disregard that rule in your consideration of the case.

I do, however, submit the case to you on the question of
the Safety Appliance Act.

There are three questions that arise under this proof that
are to be passed upon by you — ^that is, if you find some of
them in favor of the plaintiff you may have to pass upon
all of them, but if you find some of them in favor of the
defendant you will not have to do so.

I will give you these questions in the order in which they
should be considered.

In the first place, however, I will say that this suit being a
civil case the duty is on the plaintiff to make out his case by a
preponderance of the evidence. The rule is not the same in
civil as in criminal cases, wherein the case must be made out
beyond a reasonable doubt, but the plaintiff must establish
his case by a preponderance of the evidence. And by a pre-
ponderance is meant that he must make out his case by the
greater weight of the evidence, to be determined not merely
by the relative number of witnesses testifying as to any
particular fact, but by the weight or value of the evidence
as it satisfies your minds. Unless, therefore, upon a con-
sideration of the whole evidence, you believe that the plaintiff
has established the material facts necessary to make out his
case by a preponderance of the evidence, your verdict should
be for the defendant ; and if you believe either that the weight



692 FEDERAL SAPETY APPLIANCE ACT.

of the evidence is equally balanced, or that it preponderates
in favor of the defendant, then your verdict should be for
the defendant.

In the first place, the plaintiff must prove by the greater
weight of the evidence that there was a violation of the Safety
Appliance Act. The Safety Appliance Act enacted by Con-
gress, that is, the original act of 1893, provides that it shall
be unlawful for any common carrier engaged in interstate
commerce by railroad "to haul or permit to be hauled or
used on its line any car used in interstate traffic not equipped
with couplers coupling automatically by impact, and which
can be uncoupled without the necessity of men going between
the ends of the cars;" and by the amendment of 1903 it is
provided that this provision and requirement shall apply to
*'all trains, locomotives, tenders, cars, and similar vehicles
used on any railroad engaged in interstate commerce, * * *
and to all other locomotives, tenders, cars, and similar vehicles
used in connection therewith."

Now, it is undisputed in this case that those cars, especially
this Erie car, a car on which the plaintiff was hurt, that is,
one of them, was a car that had interstate freight in it; it
was going from either some point up in Virginia or Tennessee
to Georgia. The Southern Railway Company is an interstate
carrier, and it v/as hauling interstate traffic in this train, and
it was its duty to have the cars in that train, especially this
Erie car, equipped with automatic couplers in compliance
with the Safety Appliance Act, and it ought to have had
couplers on that car such as could be coupled and uncoupled
without the necessity of the men going between the ends of
the cars to perform the work.

Now, the first thing that the plaintiff has to prove by the
greater weight of the evidence is that there was a coupler
on that car which would not uncouple without the men going
between the cars. If the plaintiff fails to prove that by the
greater weight of the evidence, he fails in his case. Now, he
says that it would not uncouple by working the lever; that
he tried it several times and that the lever would not work



APPEISTDIX G, 693

and the car would not uncouple. Now, the first thing for
your consideration is whether, from the weight of the evi-
dence, you believe that statement. The defendant relies on
the evidence of the conductor, who, after the accident, tried
this lever and it worked all right, as he states, and that he,
as a matter of fact, from his testimony uncoupled the car;
and of the inspector, who says that a little bit later on he
worked the lever and it worked all right, although at the
time he worked it the car was not coupled to the other car.
Now, the first question you have to determine is whether or
not it is a fact that the coupler w^ould not work, and if you
find as a matter of fact that it would not work, that the
plaintiflP tried to make it w^ork, but that it would not work,
of course the next question for you to consider is whether he
tried to work it in the proper way. If it would not work
because he did not operate it in the proper way, of course
there would be no liability on the part of the railway com-
pany in that regard. But if he tried to work it in the proper
way and it would not work, if you find that to be the case,
then I charge you that the burden of proof would shift, and
that would raise the presumption that there was something
wrong with that coupler, and then the burden of proof would
be on the defendant to show why that state of facts existed
and to explain it.

Now I charge you that if a coupler does not work in every
instance, and if the fact that it does not work is due to some
temporary condition in which the car is placed with reference
to other cars, or the movement of the car or of the train in
which it is placed, which is a condition that will happen in
any coupler, and which can not be avoided in the highest
state of the art, the mere fact that it would not work under
those conditions would not rondi^r the company liable. But
upon that ground the burden of proof rests on the company,
if you think that it would not work when operated in the
proper way, to show that the coupler was of the highest
state of the art and that the reason that it Avould not work
was that it was impossible to have a coupler that would work



694 FEDERAL SAPETY APPLIANCE ACT.

in that condition. On that question the burden of proof
would be on the railway company, if you believe from the
evidence that the coupler would not work when properly
operated.

If you find in favor of the plaintiff that the coupler would
not work, and find that the defendant failed to show that
it had a coupler up to the highest standard, and to explain
its failure to work in the manner I have indicated, the next
duty devohdng upon the plaintiff to entitle him to a recovery
is to show that the failure of the coupler to work was the
proximate cause of the injury. It is not disputed that he
was working in between those two cars, and the failure to
have a coupler equipped according to the Safety Appliance
Act would be an act of negligence. But an act of negligence
does not make the company responsible for an injury which
does not result from the act of negligence in such sense that
the company's negligence is the proximate cause of the injury.
Ordinarily when an injury is the natural and probable con-
sequence of negligence, or a wrongful act such as the viola-
tion of a statute, and ought to have been foreseen in the liglit
of the attending circumstances, and there is no intervening
or independent cause, such negligence or wrongful act is said
to be the proximate cause of the injury. And where care-
lessness or negligence in the bringing about, for example, of a
dangerous condition, or unlawful condition, is of a character
which, according to the usual experience of mankind, is cal-
culated to invite or induce the intervention of some subse-
quent cause, such intervention will not excuse the original
wrongdoer, and the subsequent mischief will be held to be the
result of the original misconduct.

In other words, it will be your duty to determine whether
it was a natural and probable consequence of having a car
in such condition, in violation of the Safety Appliance Act,
if you find it was in such condition, that an employee in the
discharge of his duty would be injured in going between two
cars in making a coupling which he was required to do because
of the defective condition of the coupler.



APPENDIX G. G95

In such case, if you find it to be the natural and probable
consequence of having a coupling apparatus in a condition
that it would not work and that an employee in the discharge
of his duty on account of the defective coupling would liave
to go in between the cars to make the coupling, then you
would be justified in regarding the defective condition of the
coupling as a proximate cause of the resulting injury to the
employee, provided he went between the cars for the purpose
of making a coupling or uncoupling. And in that aspect of
the case, in determining whether the condition of the coupling
was the proximate cause of the injury, you would have to
determine, as a material matter, whether he was making the
uncoupling or whether he w^ent there between the cars to turn
the safety cock. It might well be a consequence to be fore-
seen and guarded against of having a coupling in a defective
condition that a man would have to go between the cars to
make a coupling or uncoupling, but it would not follow at
all that from having a coupling in a defective condition a man
would go between the cars for the purpose of turning the
safety cock if he w^ould have to go in between the cars to
turn the safety cock regardless of the question of whether the
coupler worked or not. In other words, if he would have to
go between the ears to turn the safety cock whether the
coupling was working or not, then it is clear that whatever
the condition of the coupling was it would not involve lia-
bility as a result of going between the cars, not to handle the
coupling, but to turn the safety cock. So that you vnW have
to find the object for which he went between those cars.

Now, if you find that the coupler was defective, that he
condition of the coupler was the proximate cause of the acci-
dent, the defendant still says that it would not be liable,
because the plaintiff was guilty of contributory negligence.

Now, while the Safety Appliance Act provides that the
employee does assume the risk of using the defective appliance
itself, it has been held that it does not take away from the
company the defense of contributory negligence. That is, the
statute does not excuse the employee from a failure to use



696 FEDERAL SAFETY APPLIANCE ACT.

ordinary prudence in his own behalf, where he knows of the
absence of the proper appliances, and if the employee, after
ha\'ing knowledge that the appliances were not in the con-
dition required by the statute, he himself is guilty of contribu-
tory negligence, which operates as one of the direct causes
of the injury which he receives, then he cannot recover.

Now, to take an extreme case, simply to illustrate the dis-
tinction: If an employee knows that there are no automatic
couplers on the cars, but should attempt, with knowledge of
that fact, to go in between two cars on a rapidly moving
train to make a coupling, say a train running at the rate
of 20 miles an hour, or when the care are moving so fast that
an ordinarily pinident man with due regard for his own
safety w'ould not go between the cars to make a coupling at
that time, he would obviously be guilty of contributory negli-
gence, Avhich would bar a recovery, although he did not as-
sume the general risk of continuing in the service of the
company \nth the knowledge of the fact that there were no
automatic couplers on the car. So, then, the question would
be, if you find in favor of the plaintiff on the first two propo-
sitions, was the plaintiff, wdth the knowledge he had of the
conditions, guilty of contributory negligence in going between
the cars at that time?

Now, contributory negligence is a failure on the part of a
man to exercise that amount of care which, under the circum-
stances, might be reasonably expected of an ordinarily prudent
person, and whenever a plaintiff himself so far contributed
to his injury by his owti negligence or want of ordinary care
or caution that but for such neglect or want of ordinary care
and caution on his part the accident would not have hap-
pened, then he is guilty of contributory negligence and cannot
recover.

The test of his contributory negligence is the care that an
ordinarily prudent man, similarly situated, under the same
circumstances, with like knowledge of the conditions, would
have exercised in his own behalf, and a failure to use such
care, operating as a direct cause of the injury, is contribu-



APPENDIX G. 697

tory negligence. If, however, gentlemen, the danger, although
present or appreciated, is one which many men are in the
habit of assuming, and which prudent men who earn a living
are willing to assume for extra compensation, and if the
person assuming such risk, having in view the risk of the
dangers thus assumed, while assuming it, still uses care rea-
sonable and commensurate with the risks to avoid injurious
consequences, he is not guilty of contributory negligence. But
if an employee, who knows the danger while assuming the
risk, does not use such care in his own behalf, and by reason
of the failure to use such care suffers injury, he is guilty of
contributory negligence, and cannot recover, even though the
negligence of the employer in violating the statute was also a
cause of the injury.

So, then, you should determine this question. If there
would otherwise be a case against the defendant on account
of the violation of the statute, still would an ordinarily pru-
dent man situated as this plaintiff was, and with a knowledge
of those conditions of the liability of the car to come back
after the ears had been backed up a slight grade — would an
ordinarily prudent man have gone in between those care to
make that coupling? Or, if an ordinarily prudent man, earn-
ing his living as this plaintiff was, and in view of the risks
which were assumed by him, if an ordinarily prudent man
would have gone in between the cars at all, would he have
gone in in the way that this plaintiff did, and would he have
placed himself in the position with reference to the bumpers
and the cars that this plaintiff did? That is, did the plaintiff
take care of himself under these circumstances, in going be-
tween these cars, first, with reference to going in at all, and
second, with reference to the position of his body and arms
after he went in there that an ordinarily prudent man would
have done, with due regard to his own safety?

A man must exercise ordinary care for himself and for
the preservation of his own life, and if he fails to exercise
that ordinary care that a reasonably prudent man would, and
that is one of the causes of the injury received, he cannot



698 FEDERAL SAFETY APPLIANCE ACT.

recover, no matter what the negligence of the defendant may
have been.

Or, that question the burden of proof is on the defendant,
and it must establish the want of care either in going in at
all, or in the way he conducted himself after going in ; it must
establish that want of care by a preponderance, or a greater
weight of the evidence. On the first two propositions, that
the company was not operating in compliance with the Safety
Appliance Act, if that be the case, and if that be, that this
was a proximate cause of plaintiff's injury, the burden of
proof is on the plaintiff. His proof on that subject must
overweigh the defendant's proof. But if you get to the
other proposition then the burden of proof shifts, and the
defendant is required to establish by the greater weight of
the evidence the fact of plaintiff's contributory negligence.
But if it does establish it, there can be no recovery. It would
not be a question of cutting doAvn the amount of damages.
Contributory negligence defeats any recovery at all ; it does
not cut down or decrease the amount of the verdict, except
in certain cases not involved here.

If you find in favor of the plaintiff, it would be your duty
to assess his damages. The damages which you would assess
should be compensatory. In doing this, you should consider
all the circumstances connected with the plaintiff, his age, his
earning capacity, his habits, his prospects of life, and of
earning wages in life, the extent to which he has been de-
prived of earning a livelihood as a result of this injury, and
of the means of earning a livelihood; if you find that he is
entitled to a recovery at all, you should fix such sum as in
your judgment would be a fair and just compensation for the
injury received, as well as would be a fair and just com-
pensation for the suffering, and the expenses to which he was
put — the medical expenses — although I believe none were
proven in this case. But if you find he is entitled to a re-
covery, you give such sum as will compensate for the suffer-
ing, the loss of time, and the decrease of his earning capacity.



APPENDIX G. 699

You are the judges of the weiglit to be given to the testi-
mony of the witnesses. You should consider their demeanor
on the witness stand, their intelligence, their manner of tes-
tifying, the extent to which they are contradicted or cor-
roborated by other witnesses, their candor, or lack of candor,
interest, or lack of interest, in the result of this lawsuit, and
the reasonableness of the story they tell, and then determine
where, in your opinion, under the law, as given you, the truth
of this case is to be found.

Verdict for plaintiff, $5,000.



No. 1007.



THE NORFOLK & WESTERN RAILWAY CO., PLAIN-
TIFF IN ERROR, V. THE UNITED STATES OF
AMERICA, DEFENDANT IN ERROR.

United States Circuit Court of Appeals, Fourth Circuit.)



Online LibraryW. W. (William Wheeler) ThorntonA treatise on the Federal employers' liability and safety appliance acts, with similar state statutes and federal statutes on hours of labor → online text (page 69 of 73)