OHICAGO " 5.
RY. CO. V. DAVIs.
rant a different constructiOn,. other langUage; plainly indicating the purpose to create a condition, as provision for re-entry, forfeiture, etc., must be employed. In Spear v. Fuller, 8 :N. H. 174, where a similar provision was under consideration, the court held it to be a covenant merely, and not a condition. The authority of this case is weakened however by the fact that its ruling does not rest exclusively on this ground. In Wheeler v. Dascomb, 3 Cush. 285, the lease contained the following provision: "The tenant agrees to deliver up the premises (during the term) on three months' notice." This it was held did not create a condition, for the sa1l1e reason-the absence of.appropriate language to express such a limitation. See, also, 1 Washb.ReaI Prop. §§ 504·-506, 510, 511. The plaintiff refers us to Mason v. Corder, 7 Taunt. 9, and Hynes v. Ecker, 34 Mo. App. 650. The former is a decision on motion for new trial, and is so meagerly and unsatisfactorily reported as to be of little value. The latter is a decision of the district court of St. Louis and Kansas City, and does not seem to involve the question. The point recited in the second assignment, the answer to which is also complained of, raquest,ed the court to say. that because of the facts therein stated aswrender by operation of law had occurred. The statement contains only a part of the facts bearing on the ques· tion. T4e court refuSed. ,the point and submitted the question of sur· render to the jury on all the eyidence. In this we think it was right. Tha. third assignment is llased on the court's instruction that tlle burden of proof. respe.cting .the question of was on plaintiff it!. error. Here agajn. we think the court was right. It is immatel'ial that the testimony respecting the question, on which the plaintiff relied, went in with the defendant's proofs. The allegation of surre:pderwas the plaintiff's-was a part of his case-and he was therefore.bolmd to sUliltain it; by reference to ... the necessary proof. Finding no error in the several assignments, the judgment is af· firmed.
& N. W. RY. CO. v. DAVIS.
(Circuit Court of Appeals. Eighth Circuit.
MAsTER AND SERVANT-DEATH BY WRONGFUL ACT-CONTRIBUTORlr NEGLI' GENCE.
A section man on a railway, who releases his hold on a hand car, descends therefrom, stands upon the track on a down grade, in front of a dump car, by chance detached from the hand car, and closely following it at the rate of from three to four miles an hour. and is killed thereby. is guilty of such contributory negligence as to bar a recovery for his death.
In Error to the Circuit Court of the United States for the Southern District of Iowa. of the estate of Olaf Hoedling, Action by A. T. Davis, deceased, against the Chicago & Northwestern Railway Company, for death by wrongful act. Verdict and judgment for plaintiff. Defendantbr,ings eITor. Reversed.
vol.. 53." "
\ 'FJ,'w :mJiDaw.leY" 8.lld' J. 0. OOOk,' (W. O. Gondy 'and N. M. Hubbard,
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erom:, BOweri)(J: It Barcroft'tmd Q. M.Brockett, on the brief,) for
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,Be16re BORN OIf-pill,tl J;trdges. , . ' ,"
' and oAtomLL artd SAN" , " ,
Judie. :,' Tbi,'defEmdantin erl-otl; who was the plmntm below;'bronght' (or tM negligentikilllng of, the deceased by The in its answer, denied negligencl:\ on itspflrt, and allegedthat\the negligence ot the decealiled'eausedhis ideatli., ,The testimony was undisputed, and establishedt1J.e following fA(lts:1;",' , : ,J"" On July U, 1888, the 'workillg as a section man for the defendant.' 'He had its service in that' about two weeks, and'oJ:i'this day "\\f3s-urle: of sectiongangot six men who were engaged ill trl;tnsporting.railroadties by means of a handcar alid dump car:'albng the lineofthe'railroad to the point where they were to be used1to repair , of these men upon the forward' end, of the' h3(ndcar.. 'a.il41, three upon the; rear end. 'The deceased'was the Diiddle one upon: the of the cat. Dump Cilirsordinartly an4no mea1;lS offaistenin.g them to, a hand' ear, and thiS onechad tibne. , In the forenoon of thIS mty these men'loaded 22'or 23 neW lengthwise upon the dump car, and hauled themaJ>Q'tlt'a mile and a half over a hilly road, when tli,eyfudoaijedthem:, reti\oved the cars from tb.etrack, ate their dinner, ,t,hen, retoade,d the' and a,gain pt'()ceeded on way. ,In the'mormng, when'tlle'd1i1np car was loaded, the sectIOn boss struck a piek into one of the ties, near its forward end, so that its handle forward,' some one to take hold of the pick The hand car was iii front of the loaded dump ear, and the deceased, standing on the rear end of the hand car, grasped its handle with his right hand toh()ld hin1self ill position, and took hold of the handle of the pick with his left hand" to control the speed of the dump car, and keep it at a proper distance from the hand car. They passed risillg grades, in the forenoon, ,anel there they got off and the dump car, because the propelling power of the hand car was not sufficient to hauUt. After reloading the car ill the afternoon, ,therproceeded way, the deceased still graspillg the handle of the hand' car and the pick handle, until, as they were passillg down a descending grade, one or two of the ties and the pick fell ofi!. ,,'When the ties, felll,the boss applied the' brake to the handcar,'wWch diminished its,speM, J>ut he in1mediately saw, that no more ties would fall, and. released the brake. When he applied the brake, the dump car came up agaillst the hand, car so that the men standing on it felt it "a little bit," but neither the deceased nor any or had any of the men on the car lost their balance on difficulty in keeping their pla.ces. "When the brake was released, the hand car, which was moving about three or f6ur miles an hour,-so slowly that the men could easily step from it to the ground without falling,-separated from 2 to 8 feet from the dump car. When the
CHICAGO & N. W. RY. CO. '17. DAVIS.
hand car had moved about 150 feet from the place where the ties and pick fell off, the deceased released his hold on the handle of the hand car, and went downbepween that and the dump car, where he was run over and killed by the latter. When the brake was let oft', he had his right hand on the handle of the hand car, and as he released his hold and went down upon the roadbe(j. he did not call out, or reach out his hand to grasp anything or anyone, nor ,did he lose his balance or fall, but stood still, as if he had stepped down, or walked a step or two towards the, dump car, until it struck him, and threw him under it. At the close of the testimony the defendant requested the court to instruct the jury to return a verdict in its. favor, but this was refused, and this refusal is one of the errors assigned. There was a verdict and for plaintiff. , In pro,vidfng his employes with a reaaonably safe place in which to work, in supplying them with reasonably safe machinery and ap· pl,iances with which to, perform the service assigned to them, in the employment of competent men, and in the general conduct of his busi· ness, it is ;the duty of the employer to use that degree of care, com· mensurateW;ith the character of his various operations, which an or· dinarily prudent person would exercise under like circumstances in order to protect his employes from injury; and for any injury caused by his failure,so to do he is,liablein damages, provided the injured employe does not by his .own negligence contribute to such injury. It is likewise the duty of' the employe to exercise that degree of care, commensurate with the character of his occupation, which an ordi· narily prudent person would employ under like circumstances in order to protect b;imself from injury, and, if he fails to exercise this care, he cannot recover for any injury to which his own negligence has contributed, even though his employer has failed to exercise due care. Wherethe.injury results from the concurrent negligence of the em· ployer and employe, the latter cannot maintain an action for dam· ages resulting from it, because it is impracticable in the administration of justice to divide and apportion the compensation in propor· tion to the varying degrees of concurring negligence. If he volun· tarily and unnecessarily places himself in a position that he knows is dangerous, or that an ordinarily prudent man in his position would know was dangerous, and is thereby injured, when there are other positions that he might take in the discharge of his duty that are safe, he cannot recover of the defendant, although the latter is in some degree negligent. He cannot recklessly and unnecessarily expose himself 'to 'a, known danger, and then recover for an injury to which such exposure contributed. Cunningham v. Railroad Co., 17 Fed. Rep. 886; Bunt v. Mining Co., 138 U. 8. 483, 485, 11 S.up. Ct. Rep. 464; Railroad Co. v. Jones, 95 U. S. 439,443; Kane v. Railway Co., 128 U. S. 91, 94, 9 Sup. Ct. Rep. 16; Goodlett v. Railroad, 122 U. S. 391, 411, 7 Sup. Ct. Rep. 12M; Kresanowski v. Railroad Co., 18 Fed. Rep. 229, 234, 235; Railroad Co. v. ::Nickels, (8th Circuit,) 4 U. S. App. 1 C. C. A. 625, 50 Fed. Rep. 723. Under the statute upon which this action is based, the administrator CaD maintain it only in case the deceased could have recovered darnagei;l for his injury' if he had survived. The first question there-
cause aceid.ent and death? '. . " " ,, 'The'proximate cause of thei,death was that the deeensed .releaSM .!ilil grasP upon the handle of tMhandcar, went down upon the roadbetween the cars, and there stood still, or walked towards the approaching dump car, until it struck him. These'acts were not nec· essary to the perfol'IDanceofhis duties. They did not tend to assist him in the proper of those duties, butjellded to prevent their proper discharge. The danger of releasing his hold' and placing himself on the roadbed in front of" the descending loaded car was plain and palpable, No man of ordinary prudence ctmld fail to apprehend it. 'nle deceased must have seen and known it. He was 48 years old. He had been in this country ·10 years..'.lIe had worked for this railroad company' four or five weeks on a gravel train, and two weeks immediately preceding accident on thiS section where he Was killed. He knew that these cars were running at a down grade at the rate of three or four miles an hour, and, that his safety in'standing on the moving hand depended liponhis holding fast its handle. He knew' the effect of gravitation,-thatheavy bodies, when unsupported, will fall; that cars as well as water will run down hill; and that the momentum of,a loaded car descending a grade at the rate of four miles an hour will. carry with it or crush under it a single man who places himself ill itS way. No man! of ordinary prudence would have so unnecessarily exposed himself to this plain danger. !No man in the exercise of reasonable care would have released hla hold upon the handle of the hand car, so that he might, by any sudden change of speed, be toppled off the car. No ordinarily prudent 'man would. have placed himself on the roadbed in front of the advanl}ing dump car. As well might a brakeman .throw himself in front of an advancing locomotive, Or a painter, holding to a ladder far up of a lofty building, release his hold, and then seek to recoV'el" of his employer for resulting injury. ' Iuliane v. Railway Co., supra, the supreme cotirti'Said:
"It is undoubtedly the law that employe is guilty of contributory negligence, whi¢h will defeat his right to recover for injuries sustained in the course of his employment. when'8urch injuries' substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances. would have avoided them, if in his power to do so. He will be deemed to have assumed the risks involved in such heedless exposure of himself to dan'
In Cunningham v. !lailroad Co., supra, where a yardman in the discharge of his duties,unnecessarily jumped upon a defective footboard on the rear of an approachi:hg engine, whose hand railing was broken off, so that he fell under the engine and was killed, Justice Miller, in charging the jury, thus laid down this rule of Jaw:
"A man has no right, because a fire is built in his neighborhood, to put his finger or his,clothesin it. alld burn them, then say, 'I may sue and recover damages.' A miui has no right to thrust himself forward into a dangerous position, and say, 'If I am killed, somebody will get damages for it;' or, 'If I am hurt, I shall go to thebospital. and be taken care of. and recover damages.' He has got to take care, ofhimself, as well as the railroad has to take care of their duties and their employes. These obligations are mutual; and it is the law. and it is yoqr duty to require it as law, that, if a man voluntarily put himself into a dangerous
\:INION PAC. RT. CO. " · .JARVI.
position,-does so unneeessarily, when there are other positions in connection with the discharge of his duty which are safe which hI! can be placed in.-he cannot recover of the railroad company damages for that injury to which he has contributed by his own negligence. is the law."
When the jury in that case, through some mistake, returned a verdict for the plaintiff', he immediately set it aside with the remark that it was not only a case of clear negligence on the part of the deceased, but a case of stupid negligence on his part. The similarity of the negligent acts of the deceased in that case and in the case we are now considering is striking, and the applicability of this rule of law to the facts of this case is obvious. The deceased was stationed in a safe position for the discharge of his duty,-a position where he would not have been injured had he retained it. He carelessly left it, and unnecessarily exposed himself to a perfectly obvious danger. /l'his careless exposure was the proximate cause of his death. An ordinarily prudent man would not have so exposed himself, and would not have been injured. The other five members of his gang did not, and they were not injured; and the court below should have instructed the jury to return a verdict for the defendant. The views we have already expressed render it unnecessary to consider the other errors assigned. The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
BREWER, Circuit Justice. I concur in the judgment of reversal on the ground whatever of risk there was in the position occupied and the work done by the deceased at the time of the accident causing his death, was obvious, and therefore assumed by him. No special skill or knowledge was necessary to perceive the full danger. Every man must be presumed to know the effect of applying a brake to a wagon or car descending a grade, and to take such precautions against injury therefrom as he deems sufficient. So, whether the deceased got off the hand car voluntarily or involuntarily is immaterial. If the former, he chose to put himself in a place of danger; if the latter, it was because he failed to take suitable precautions against that checking of the hand car by the brake which he knew was likely to happen at any time, and the effect of which he must also be preBumed to have known.
UNION PAC. RY. CO. v. JARVI. (Circuit Court of Appeals, Eighth Circuit. No. 128. L
MAsTER AND SERVANT-DEFECTIVE APPLIANCES-MINES.
October 17, 1892.)
Where a certain part of the roof of a mine, from which rock falls and inJures a workman. was known to the officers to consist of treacherous rock, needing constant watching, and Hable to be loosened if wet; and where it appears that it bad not been properly tested for weeks; that it had long' been wet; that similar rock near by had been supported or removed,-it is a question for the jury whether the failure to support or remove such rock was a lack of ordinary care in providing a safe place for the miners to work in.