OpenJurist

['If it,: befttl!gedi.'tkat,this prompted by an'ttlfurior and 'Mlfish:niotive,--.:..tbatfhe ,compllny may have: thOfight the 'OpetlttioIi; of its' medicaldepartIneilt:would llrote6t'it: from iexOOssive clli!ths 'for injuries' resulting to its serYau ts, -tb.e'ftBt!weriElithat theti'tietes1l ofa pUblic chanty is not the mo· tive!Of thedOli01";but to which the'moliey given is to be. ,.If iatgUillent,autM!i"ty, and ill!lstrri:tion in support of thIS 'proposition iU'e'wanted,they will be found in the learned and of Mr. lJUstice Paxson: in Insurance Patrol v. Boyd, too, St, 646, 15 Atl.553. If a dozen of the employes of, thiS' 'had eontributed a fund," out of cbarity; to furnish one lOf'ltJtijir who wilS'injured, with hospitalaccommodationsafid:medical r attendance! they certainly would not "have been liable to him: for ,the malpra:etice: ()f the phySicians,or the negligence of the 'etnptQyed. ,If they' had' intrusted such a fund to.'ri.tbil'd ',peraontor'ardmiIiister, who, out ofchaPitjr; contributed I to Ilt 'morellli'l'geIy; and:l1e rftn'nished the acoonlmodations and attendanbeby the! use of tliis,funtl, it' goes without saying that he would not beliablEHor the negligence of the physfciansorattendwhom this charitable gift is intrustet'f/tlie partylliat contl1bUtE!s most; liberal11t04t, and the party that cannot by any pdsldbfltty.derive:any directptoftt or bennot .bodily ·ailm,ents"a.nd is a corporation, cannot extend;thel:inlits oHegalliabilityhere. The' result is t4lit doctrine' (If 'respondeat supep.ior:haano application'to this The<My"contract the law.lhIpllel;l here is the on '9Qm,pany to (fare to select and obtain skillful physicians and careful atte:ndants, and if the no further. Xn other words, It was the 01 Its own personal dtity,.andnot for of theduqes of its employes. In. our :opinion on requested by thecounse1for'the eompanyshould have bee.n given, and the judgment is reversed,witb costs, and the case remanded. . with instructions to grant a newtl'ial.
T. & s.· F. R. -co. v. REESMAN. (C1rcWt Court of .Appeals, Eighth CirCUit. February 12, 1894.) No. 240.

1.

RAILROA.D COMPANtills-NEGyjGlI:NCEl-:FJl:NCEs-INJVIWTO

EMl'LOYE. Where, through the failure of Ii rallroad company to, erect and maintain sutllcientfences,asrequlred by Rev. St. Mo. 1889,f 2611, an animal gets on i Ule,' track, ca]ls$ng the of! a train, an employe on the. train, whoIS,lnj)1l"ed 1:>;y. t).le accident,is entitled to sue t4lLCorqpany therefor, since designed to protect the persons on ,trains as well as W6ii 'eattle owners. .,', .

a SAME.;;..NE(}tYGENOlllOF FEJ,LOWSERVANT.

, ,The that the Insutllclency of the fence was, by the negllgenCe,of! a fellow servant Is not a:Vf\Uable, since the of fencing, cast by Ule's1ptute upon the' company itself, cannot be delegated by it to its servants. .' . , , . .'

ATCHISON, T. & S·. F. B. CO.V.BF.F;:;MAN.

371

8.

'!'nI,.\L-OBJECTIONS TO EVIDlllNCE-:-WAIVER. .

Where the company has Introduced evidence as to repairs matJe by It on the fence after the accident, it cannot complain of the admission of further evidence on that point offered by the plaintiff in rebuttal. The mere knowledge and assent of the conductor of a train to a violation by a brakeman on the train of a rule of the company requiring him to be on top of the car, In order to give signals :to the engineer, does not exonerate the brakeman from the charge of contributory negligence for injuries received by him in consequence of his violation of such rule.

4.

llASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE -VIOLATION OF RULES.

In Error to the Circuit Court of the United States for the Eastern District of·Missouri. Action by David B. Reesman against the Atchison, Topeka & Santa Fe Railroad Company for personal injuries. Plaintiff obtained judgment. Defendant brings error. Gardiner Lathrop and Ben Eli Guthrie, for plaintiff in error. B. R. Dysart and John F. Mitchell (Joseph Park, on the brief), for defendant in error. Before BREWER, Circuit Justice, and BCiii:li, Circuit Judge. BREWER, Circuit Justice. This was an action to recover damages for personal injuries. Plaintiff below (defendant in error) was on the 17th day of June, 1891, in the employ of the railroad company a.s brakeman. He had been in such employ for about three years. At the time of the injury he was on a ditching train, com-' posed of an engine and four cars, the engine pushing the cars. Just in front of the engine was a flat car, then a car on which the ditching machine was placed, then a box car fitted up for the men tQ sleep in, and in front of that a way car or caboose. Plaintiff had been at work on this train only eight or ten days, though for two years he had been acting as brakeman between Marceline, Mo., and Ft. Madison, Iowa, and was therefore familiar with the track at the place where the injury happened. On the morning of June 17th the train left Marceline for the purpose of doing work at a place six miles east thereof. The track, for some distance, was nearly straight. After going about a mile and a half, and while running at a rate of speed of from 15 to 18 miles au hour, the train ran over a steer, which derailed it, and caused the plaintiff's injury. The crew of the train consisted of the engineer and fireman, conductor, head brakeman, and the plaintiff,-the rear brakeman. From the time of leaving Marceline up to the time of the accident, the conductor and the plaintiff were on the platform of the caboose at the head of the train. The head brakeman was on the inside, in the cupola, while there was no one on top. The ditching machine had arms or dippers extending on either side in such a manner and to such an extent as to interfere with the view of the engineer of the front end of thp train. Rule 104 of defendant's rules was in force at the time of the accident. and is as follows:
"When a train is being pushed by an engine (except when shifting and making up trains in yards) a flagman must be stationed in a conspicuous position on the front of the leading car. so as to perceive the first sign of danger, aud i ll1 mediately signal the engineer."

J'EDERAL' REPORTER, 'vol. ·60.

,ol\the.p.1,lJ.1; 0.1 the',liefen4a:nt' 'tel¥iing to show , There .that the conspicuous place on· tIle ditching train,iWithin the meaning of that rule, ,wason top of the caboose, where the' flagman could be seen. by the engineer, whenever h,e made any signals, and that it was liuty to be attJmtplace. "The burlien of the plaintiff's caSe,.w;as that the defendant company had negligently suffered the fencesaIong its right of way to become and remain out of repair, and insufficieDt to keep cattle off the track; that in .consequence thereof a steer, broke through such ins.utlicient fence, got lJPOJl the track, and derailed the train, causing the injury to plaintiff.: ''Jllie defendant steer enterecl onto .the track thr'(nigh any defective denied. that or fence; claimeli tl,lat;, even if it duty to erect and imiintain a fence was, not.one whh:u, wouJ,davaUone 01 Its em· ployes, ill an action for resultiIlg from, a, neglect of such tli;at tpe wO,.$· neg!igence, in not being III hIS proper place, on top of the caboose, and III a place where he could see the danger, and give the signal to the engineer. '" .!> " , . . ' . The provision of the Missouri Statutes in reference to the fencing of railllGad ,tracks is found ,in Rev. St. Mo. 1889,. p; 659,.§ 2611. The first pam of. the section is as follows: r,
"Every. railroad corporatlOJl:1ormed orto,beformed in this state, and evel')corporatJgq. to, be formed under ,w,' any railfoad corporation run. liny railroad in ,this state, Ilhall and maintain laWful fences on the sides of the road Where tlie same passes through, along or adjoining1lllciosoo or cultivated 'fields 'oruhinclosed lands, with openings and gates tbe"etn,to be hung aDcLbave latches or hooks, so that they may be easily anel shut, at all, farlp crossings of the road, for the use or ownerI!' of the land adjoining: such railroad, and also to cons'tr\ict and maintainca;ttle guards, where fences are required, sufficient to pMlTent horses, cattle, mules and all other animals from getting on the railrOlld:; ,'and' un til fences,.openings, gates and farm. crossings and cattle guards as aforesaid shall and maintained, such.cQrporatIon shall be liable in dO\lble amount of lll1 damages which shall.be done by its agents, engines or' cars to horses, cattle mules or other animl'lls on said road, or by reason of any horses, cattle, mules or other animals escaping trom or coming upon said lands, fields or enclosures occasioned in either case by the failure such fences, to COn8tr1J,Ct or maintain such fences or cattle gu\llrds. gil.tes, farm, crossings and guards shall, be dulYlllade and maintained, said corporation shall not be llable for any such da.niage 'Unless negligently or willfully

FollowIng this provision are others, giving adjoining proprietors the right to. c9.nstruct the fences on the failure of the, railroad com· pany so fA,> do, and recover the cost thereof from tlle company, and declaring that, any person leading or driving stock onto ,the track within sp,c1J,fences should forfeit and pay a sum: not exceeding $10, and shop.1(j' 'atSO pay to the party injured all, damages sustained ..· . ., . In . to the liability of the underihis section, the courtgave this instruction to the jury: .
"If the jury believe from the evidence the defendant suffered the fence nlongits right of way to become and remain out of repair in the manner described by plaintiff's witnesses, so that cattle could with little difficulty get throl1gh 01' under the fence,and if you believe from the evidence that, by reason of its being so out (lIf repair and defective, a steer did in that manner

ATCHI,SON.1';14S. F. R. CO. V.REESMAN.

378

go upon defendant's rlgbt otway and traCk, and cause the ditching train, by which. plaiIltU! was ill.fured, then you will be authorized to retutn a verdict in plaintiff's favor, provided you further believe from the evidence that defendant1s sectiou men in charge of that section had knowl· edge ot the defect in the fence in time to have repaired it before the accident, or that such defect in the fence had existed for such length of time that, by the exercise of ordinary care, they ought to have had knowledge of it, and repaired.it, before the derailment."

And refused an instruction that, under the pleadings and evi· dence, the plaintiff was not entitled to recover. In this is presented the most important question arising in this case. The contention of the company is that the fence statute referr.ed to,:\"J:\S enacted for the benefit of the proprietors 'of adjom. ing lands, and that the plaintiff, as an employe of the railroad com· pany, takes nothing by reason of ,the failure of the company, to comply its terms. It is do:ubtless true that, when a right is given. by statute,. only those to whom the right is in terms given can avail themselves of its benefits, but it does not follow that when a duty is .so imposed a violation of that duty exposes the wrongdoer to liability to no person otfier than those named in the statute. On the contrary; it is not unreasonable to say that every party who suffers injury by reason of the violation of any duty is entitled to recover for such injuries. At any rate, it is.clear that the fact that certain classes of persons were intended to be primarily protected by the discharge of a statutory duty will not necessarily prevent others, neither named nor intended as primary beneficiaries, from maintaining an action to recover for injuries caused by the violation of such legislative command. It may well be said that, though primarily intended for the benefit of one class, it was also intended for the protection Qf all who need such protect tion. In this case a technical argument might be made from the mere language of the section. It provides that the corporation shall be liable in double the amount of all damages, not only for those "done by its agents, engines or cars to horses, cattle," etc., but also for those done ''by reason of any horses, cattle," etc., "escaping" from such contiguous fields. As the presence of the steer on the track was the cause of the derailing of the train, and as that steer escaped from the adjoining field through the defective fence, it may plausibly be argued that the recovery in this case comes within the express language of the statute, as being for damages done by reason of the escape of the steer from the adjoining field through the defective fence. But we do not care to rest our conclusions upon this technical construction. The purpose of fence laws, of this character, is not solely the protection of proprietors of adjoin. ing fields. It is also to secure safety to trains. That there should be no obstruction on the track is a matter of the utmostjmportance to those who are called upon to ride on railroad trains. Whether that obstruction be a log placed by some wrongdoer, or an animal straying on the track, the danger to the trains, and those who are traveling thereon, is the same. To prevent such' obstruction being one of the purposes of the statute, anyone whose business calls him to be on a train has a right to complain of the com·

,874 'oomply-:I'wf:th 'this statutory!luty. The. authoriQf Hayes v. 228,: 369" the ,A railroad companyiwas requil'ed by an ordinance of: a mUillclpal corporation to erect a fence 'upOn the line ofitsroad, .withinthecorporate limits; "It,tailed to 'oomply witb. th,is ordin!uice, and the plaintiff, a boy of tender years, while runnbig near .the tl'ack, fell on it, and wasmn L16ver bY' passing An action havipg been brought to recover for such, injuries, the trialeourt directed a verdict andt1ju:dgtnent for the'defendant, but this judgment was reversed ll,1"'the;wpremedourt. . M:r.' !Justice Matthews, in the course of: his oPinion, discussed' the question of genetill liability in these word.".' . ':,.

ties

the

'.

"lilssald, however, that It follow that, wheJievera statutory duty Is crea.ted; allY'person who canllhbwthat he has sustained Injuries from the nonperfOJrolOilceofthat duty :ea.alnalntaln an action for damages against the the duty U! lU'e refeITed to the case of Atkiusqn 00., 2,lllxcbr as authority for that propositiOI), does, tile broad d,octrrne stated by Lord Campbell in EI. & Bt It<l2: But !l:cceptlng the more limited doctrine admitted·· in the language, ,ot Llord .Cairns in the case ctted,-that whether flu,q1,l IlJ;l 1!:4:lt10n can1>e must deplm,d on the 'purview of the legJ,amJpre fu the particular ,and l/ffiguage",hlch they have there emt)loYed,'-we thlnkthe to SUe, under tIle. circumstances of the presentcase, clearly Its linitts. '. In theanaldgous case of fences required by, :the statute as a protection 'f()r' animals, an' action is given to the owners of the dl1ty. ,And although, in the case of to peJ,'llons by reas\>n. same default,. the failure to fence. Is not, as hl the. case of animalS, l:!0DCluslve of, the llab1l1ty, irrespective of negllgeuce·.yet ali action vvilille ti:itthe personliflnjury, and this breach of duty willi be of negl1gelllof.· ,The duty 'illi'dUe, not to the city as II munllAP,aIbody, but to tbe of individual persons; ,a)ld each,person by of the oblig)ltion is entitled t!lbls individual to for its recovel'y.'The nature of tbeduty;' said Julige uooley in Tayltir' v. Railroad Co., 45 Mich. 74, 7 N. W. 728, 'and' the benedtll' to be accompllshlld through its performance, determine.,iNAether It ,is aunty to the public in parlor exe.Ius ..' . y,.9r w];lether . CIRlmth./lt it is. a duty imposed wholly or In llart for t];1ei1' especial benefit.' See, also, Railroad Co, v. Terhune, 50nt 151; Schmidt v. RaHway' Co., 23 WIs; 186; Siemers v. Eisen, 54 OaI. 418;'Ra1lroad 00. v. Loomis,13lll. '548; Railroad Co. v. McClelland, 25 m. 14Qi Railroad Co. v·. Dunn, 78 Ill. 197; MMBqth v. Canal Co., 64 N; Y. 524.; BB,\tlw,ore.& O. R.. Co.v. State, 29 Md. 252; Pollock v. Rallroad Co., 124 MIlSB'. 158; Cooley, Torts. 657." . .'
e1.

And again, answering the objection. that the want of a fence was notrtJ:1e,proximate cause ,of the .injury, obServes as follows:
..It lsturther argued that· the direction of the court below was right, becauSe the want ofa fenc.e· could not reasOnably be alleged as the cause of tb,e"Il1)Ul"Y. In the sense of efficient cause, causa causl\ns, this. is no <ioll,1;>t strictly tru.e, but that not sense 11), which the law uses the. term til this connect1()n. The Questlon is, was it causa sine qua non? (a cause WhiCh, It it had not the injury would not have taken place,-an QQcaslonalcaul!I6;) and that: is 8' question: of fact, unless the causal, conneenot Kellogg, 94 U. S. 469. The rUle laid down ;T'ft In Daniel v. Rllilwq.y Co., L. R. 3 C. P. 216, 222, and llpproved by the excllequer chajrtber (Id; 591) and by the house of lords (L. R. 5 H. L. 45), was thllH 'It IS'necesslft'yfor the' plaintiff to establish by evidence circumsta,nces· frOJIl which it· 'mqrfairly be 'infel'red that there Is

ATCHISON, T. &8. ),'R.CO.V.· REESMAN.

375

reasonable probability that the accident resJ1lted tron{'the want of some precaution which the defendant might and ought to have resorted to.' to

Another ease-and it is exactly in ·point-is that of Donnegan, v. Erhardt, 119 N. Y. 468, 23 N. E. 1051. In discussing this question the court said:
"A railroad company, for the safety of its passengers, as well as Its em· ployes upon its engines and cars, Is bound to use suitable care and skill in furnishing, not only adequ;ate engines and. cars, but also a safe and proper track and roadbed. The track must be properly laid and the roadbed properly construoted,and reasonable prudence and care must be exercised In keeping the track free from obstructions, animate and inanimate; and If, from wapt of proper care, such obstructions are permitted to be and come upon the track, and a. train is thereby wrecked, and any person thereon Is Injured, the railroad company, upon plain comrilon·law principles, must be held r\lsponslble. Experience shows that animals may stray upon a railroad track, and, if they do, there Is danger that the train may come in colllsion with them, and be wrecked. Adeqf1ate measures, reasonable in their nature, danger. Independently of any statumust, be taken to guard against tory' requirement, a jury might find, upon the facts of a case, that it, the duty of a. railroad company to fence its track to guard against such danger. But, whatever the rule would; be Independently of, the statute, there is no reasonabie doubt that it imposes the absolute duty upon a railroadcom-, pany ,to fence its tracks. " That duty, it is reasollable to suppose, was imposed, not only to protect the lives of animals, but also to protect human be-ings upon railroad trains.' It is made an unqualified duty, and for a violation thereof, causing InjUry, the railroad company incurs responsibility. The sole consequence of an omission of the statutory duty is not specified, and was, not intended to be specified, in the statute. Responsibility for in· jury to animals was specially imposed because In inost cases there would, independently of the statute, have been no such responsibility, as at'common Inw the owner of animals was bound to restrain them, and if they trespassed upon the railr(}ad there was no liability for their destruction, unless It was willfully or Intentionally caused. We are therefore of the, opinion that the railroad compal'y was responsible to the pialntiff for, the injuries he received withoot any fault on hIs part, and for this conclusion there Is much authority in judicial utterances;" citing a large number of cases, and overruling the case of Langlois v. Railroad Co., 19 Barb. 364, so far as It hoids a different doctrine.

See, also, Quackenbush v. Railroad Co., 62 Wis. 411, 22 N. W. 519. In Thornton on Private Fences and Railroad Crossings (page 571), it is said that:
"The cases are full of expressions touching the object of a statute requiring railroad companies to fence their rights of way, and there Is an almost unanimous opinion that it Is not only to protect domestic animals, but to protect the passengers on the trains."

claim that the provisions of a section substantially like the one in controversy were for the exclusive benefit of the landowner, observed:

In Trice v. Railroad Co., 49 Mo. 438, 440, the court, referring to the

So, also, in Missouri,-the state where this cause of action arose.

"But such is not the theory upon which this statute has been uniformly sustained. While the protection of the property of adjacent proprietors Is an incidental object to the statute, its main and leading one is the protection of the traveling pUblic. To Insure such protection, railroads are Imperatively required to fence their tracks, and the penal liability deemed necessary to enforce this requirement is a matter of legislative discretion."

To like effect are the cases of Isabel v. Railroad Co., 60 Mo. 475; Barnett v. Railroad Co., 68 :Mo. 56; Rutledge' v. Railroad Co., 78

376
. Mo. v. Railroad "Co., Ic'L528; Railroad Co., 79 Mo. 3l9,c:' , , " ., :' , .' , NOl':,ier,there anything in the of Berry v.Railroad Co., 65 Mo. i172ifBarclngton Railroad Co.; 71 Mo. 384:; Johnson v. Railway Co., 80 Mo. 620; Peddicord v. Railway Co., 85 Mo. HiO,-cited by plaintUf in errQr,-antagonisticto the views in the cases cited.r:lfue proposition is laid down', ,it is true, that remote landnot witlii)); ,We of the statute, and that wasintel,l\1ed for the owners of ,contIguous lands" but now,here IS it said that protection tatha traveling public :was not also one of the to be1i3eCured by the statute.. And, if the purpose ls'" to ,protect the · party ridin;g upon .a train may results to. him through the failure of the,eompany tooomply- with its requirements, because he is one of thepal'fies'for 'was enacted. Within the reasdIling the express decisiQIi of v. Railroad Co., supra, an Donnegan v; employe, has the same right asa passenger to complain of injuries by,a violation ofdtIties imposed by such.a statute. The purpOse trllin." AJ,1 ;Who are on that train. are eI:Posed,to isnat'a case where the employe has the means';9fprotecting,:.nlmself, and the ,mve1ernot, for ·if the ttiain be derailed the,dm.ger to eMhisequal.It is urged, however, by the defendant, that, tlle failure to 'keep the fence in 'repair is the fL, that, :therefO,re, it, isnoi But the by the statute upouthe company,aud It IS cast as an absolute duty. .It must erect ·and maintain ,safe and secure securing a safe place for fences.. the train. to do tliet.r work, and that, as is known, is an cast upon the company, responsibility for neglectof which cannot be evaded by intrusting it to some employe. Our conclusion, therefore, is that there was no error in the instructions df theeourt inrespel:lt to this matter, and that the law is that if" tbrough Iil,Jailul'e of:tb.e company to erect and 'maintain a sufficient fence as required by the statute, an animal gets onto the track, whereby a derailed, and an employe on that train is injured by such derailment, the latter is entitled to maintain his action for damages against the company. .' '" ,'. A second objection is. to the adniissioh of testim()IIY as to work done sUbsequently to the'accident iIi the way of repair-to the fence at the place Where the steer entered upon the track, and we are referred to the two casei;l of nailroad Co; v. Hawthorne, .144 n S.202, 12 Sup. Ct. 591, and Alcorn v. Railroad CO., 108 Mo. 81, '18 S. W. 188, as authorities for the proposition that proof of such subsequent reo pairs is not for the purpose otshowing the eXistence of a defect.! Butthe with the objection is that this testim,ony was introduced, at least in the. fi.,rst place, by the company itself. .AfterpI'oof of such repairs had been made by thl" company, the mere fact that the plaintiff, on his rebuttal, introto thematter,is,not sufficient duced further to justify any interference with the verdict" ···!tis. nnnecessary to

ATCHISON; Ti It

s.

F;R. CO.

'V.

REESMAN.

377

inquire whether. the court erred in not giving, when requested, an instruction as to the ·oonsideration to be .given to this testimony, for on the new trial,which'we are'compelled to award,probablyno such question will .' : ' The only remaining 'matter that we notice is in respect to the instructions concerning ,contributorY .negligence. This instruction was asked by the defendant, and refused:
"If the jury believe from the eVidence that plaintiff voluntarily assumed his position on the platform of the way car, lind that, under defendant's rules, his proper place was on top of that car, and it the jury further believe from the evidence that he was not in such position, and that, by reason ot his failure to be on top, he. was unable to immediately signal the engineer on first perceiving the steer, and thereby contributed in any way to produce the wreck and his consequent Injury, then he caunot recover."

It is obvious that if there was in the charge no reference to the matter of contributo:ry negligence, and the case stood alone upon the refusal to give this instruction, the ruling could not· be sustained. But the court did refer to the matter; and the question to be determined is whether the charge, as given, fully and accurately I'ltated the law in respect to contributory negligence, so as to obviate allY objection which. arises from the failure to give this instruction. This was its language:
"Again, it is suggested (and it seems to be claimed) that Reesman was guilty of contributory negligence in not taking a proper position on the way car, and with reference to that specification of negligence the court gives you this instruction: It was the duty of Reesman to comply with the rules made by the defendant company for the government of its brakemen. If a rule of the company required Reesman to be on top of the way car on the occa· sion of the accident, and he was on the rear platform, without the consent of the conductor, then he was guilty of such contributory negligence as will prevent a recovery, provided you believe that his being on the platform, instead of on the top of the. way car, helped, in any direct way, to occasion the derailment; but if being on the platform, instead of on the top of the car, did,not in any way help to occasion the accident, if ,Reesman was on the platform with the klloW'ledge and consent of the conductor of the train, under whose orders he worked, then he was not guilty of contributory negligence merely because he was on the platform, though the rule did require him to be on the top or roof of the Car. In other words, gentlemen, although they may have had rules requiring him to be on the roof of the car, and he was not on the roof, yet, unless you are able to say that if he had been on the roof the accident would not have occurred, why the fact that he was not on the roof Is no defense. It is not contributory negligence, such as will preclude the plaintiff from recQvering. If the position which he took on that re9.r platform on the morning of the accident was a position which he took with the knowledge and consent of the conductor who had charge ot the train, the fact that he was there, and not on the roof of the car, does not make him guilty of contributory negUgence, notwithstanding the rule which has been read in evidence."

The proposition here plainly stated is that if plaintiff disobeyed the rules of the company, and such disobedience contributed directly to the inju:ry, he may nevertheless recover, and cannot be held guilty of contributory negligence, providing that such disobedience was with the knowledge and consent of the conductor of the train. Or, in other words, if the conduotor fails to enforce the rules of the compa,riy the empl()ye may knowingly disregard them, and yet· in .no manner be ba;l'l'ed from recovering for injuries which would not have

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ted.,".J".ll to.r sucb cdieW, e nt . '.' . .
i

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t ,do.Qtr.in. :we. ,cranI!0t

of. from. the is un· necessary in this case. The:<duty to therll'ules of the an em· i. pl()ye"oJ.8.ims to recov:e:t' tooJ11, his forinJurles, resulting :, thro1lgJliI threlatter'sttegligence, ,beI(Camnot escape;:theco:nsequences .1j,ct known QfJhe exp.pl,Qter±Ontheg1,'6n,nCl'tbat his im· mediate siIperintenden*nknew and. such. act ,Qf ;violation. ifir-. of.any super.Wt3n,. . of .a·, .a . from respo Uittt9J; .hIS Q'Wtl conduct; 'tIl other WOl'(ls, the wrong' of

the.lplatcQmp,lI,nlJi boose. A ili1ferent question may

the, top of

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InJUre .. ' his OWn. omisslOn of .duty .escapes habihty for such OP.i.,S.·. ;}) ... s om . .. .·. . .. . . is.).. qu.ally.·c.a.tele.'. . T.b e que. bon . apsen whetlj.er knowledge' 'and, assent· on the part 8t ilie'conduetc5r; or other offiCial on. a traii1;·of.aviolation of one of the rules of the company by it'passenger, the latter · of arising from. such violation, W;J.ifqrnily been in the, negative. It istrilfl,thatin was not an employe, tOtllhecolltrol iof.the officer whose knowledge and assent to . relied.':U.pb.nas an 'cK. u.se,but.. t.h.e ·nc.iPle under.·. . lymg is not of' obediet;lce to orders, but of wlth andj.gengrally speakJng, the duty of co.m.pJl.laDce is n.ot WaiVed.·... b.Y the. m e.re. f.act that. some,. controlling . . . . ,. . .. . offiCial'lJ,a;s'knowledge of tke failure·tocontply.. In the ease of Rail· J'ones, 951J. pafj;yi,njured, who,fhough an em· ploye,wM rnotemployed .:()n the train s'l),pject to the control of the conducoor,'wasridingbn'the pilot of· the locomotive, contrary to the his employer; but with the knowledge' and as.sent of the '()f and itWtis held' that his thus riding · was contributory negIlgence and the court observing, "The knowledge, Rssent,or direction of the company's agents as to what hedd!.d itfimmater:ia1!' In Railroad Co. v.Langdon,92 Pa. St. · riding jiIthe bagof, t4,e rules of t}ie,company.It w:as held that he .co1J.ld .although sucl1 riding was with ,the knowledge of the conductor of the train. In the course of the opinion the are conductor,in. violation of a caD, a man to .occupy a posi. tion responsible,') .See, also, the. Co., 14 Allen., 42.9 ; Ran· road Qq., v;.:Moore, 49 .. Co. v. Roach, 83 Va. 375, 5 S. E.17,f);:R,aill'Oad Co> v, f\4m'r, 86 Va. 390, 10 S. E. 422; Rallroad Cq.v. Da"1is(,Ala.) ·. Nor is there anything in · ,the case of (deqijled by this court) 4 U. S.

s.s. :.··.

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NEW ORLEANS &- N. E. R.aO. V. THOMAS.

379

App: 369,1 718,'inconflict.wi{hthe views herein expressed. ' Intllat' case..abrakeman wasJnjurM while coupling a car, and on the tl'ialaninstruction "vas asked of the court to direct a vei'dict for defendant on the gronnd of the contributory negligence of the plaintiff, in failing to use a stick in making such coupling, as required by the rule of the company, which instruction was refused, 'and the matter of negligence submitted to the jury. There was testimony tending to show that the rule was universally disregarded, and that the superintendent of the road:was fully aware ()f its constant violation; and it was held that l1nder>thedrcumstances the jury were at liberty to consider whether the rule was not, in effect, abrogated. The court thus disposed of the question (page 882, 4 U. S. App., page 625, .1 O. C. A., and page 718, 50 Fed.):
,'ITo llold that this defendant company could make this rule on paper, call it to plaintifr's attention, and give him written notice that he must obey it, and be bound by it, one day, and know and acquiesce, without complaint or objection, In the complete disregard of it by the plalntlfr, and all its other employes ,associated wlthblm on every day he was in its service, and then escape liability to him for an injUl,'y .caused by its own breach of duty towards the plaintiff, because he this rule, would. be neither good morals nor good law. Actions are often more efrect1ve than words, and it will not 40 to say that neither the plaintifr nor the jury wusauthorlzed to believe, from the long-continued acquiescence of the defeJ;ldant in the disregard of this ruIe, that it had been abandoned, and that it was not in force. The ev:idence Of such abandonment was' competent and' ample, and the ruling andcha'rge of the court below on this subject were right."

It is uI)necessary to pursue this matter further. It may be laid down as a general.rule that the mere knowledge and assent of his immediate superior to a violation by an employe of a known rule the company-theempl()yer-will not, as a matter of law, relieve such. employe from the consequences of such violation. The judgment of the court below must be reversed, and the case remanded for a new trial.
NEW ORLEANS & N. E. R. CO. et al. v. THOMAS. (Circuit Court of Appeals, Fifth Circuit. January 2, 1894.) No. 156.
1.

CABlUERS....,CoNTRIBUTORY FOR. JURY.

Plaintifr, traveling on a cattle tri\Jn. with his cattle, reached New Orleans, where it was necessary to have his cars switched ,a short distance over another. road, to the slaughterhouse. With the acquiescence of the train hands of this road, be climbed on top of a car, to go with his cattle; but on the way the car was run into \jyanother tfllfn, 'and upset, whereby plaintiff received injurIes. Plaintifl; and other cattle men had before rid· . den on top of cars, with the consent of the train hands, but such riding was prohibited by a general order of 'the company. He testified that .be knew it was a dangerous place to rIde. Held, :that the question of oon· tribnt:qry negligence was a proper one for the jury, and there was DC) error in refusing to direct a verdict for defendant. Pardee, Circuit Judge, dissenting.
SAME-INSTRUCTIONS.

2.

It was proper, under the circumstances, for the court. to modify are, quested charge· by, adding that, if the company had bela out their em-