NORTHERN PA.C. R. CO. V. TEET.ER.
NORTHERN PAC. R. CO. v. TEETER.
(Circuit Court of Appeals, Eighth Circuit. . September 10, 1894.)
MASTER AND SERVANT JURY.
INJURIES TO RAILWAY BnAKEMA.'f -
Where a brakeman was injured while coupling cars by stepping into a hole covered with snow and slush, held, that it was the province of the jury, there being a contlict of evidence, to say whether the company had discharged its duty of keeping the track in reasonably safe condition, and, if not, whether its neglect was the proximate cause of the injury, unmixed with any negligence on the brakeman's part.
2. TRIAL-WITHDRAWING CASE FROM
When, by giving credit to plaintiff's evidence, and discrediting defendant's, plaintiff's case is made out, the court cannot withdraw the case from the jury.
The giving of an abstract instruction, which, in view of the state of the evidence and of other correct and applicable instructions, could not have misled the jury, is no ground for reversal. Sanborn, Circuit Judgp, dissenting, on the ground that the jury may have been misled, and that the presumption is that error produces prejudice.
In Error to the Circuit Court of the United States for the District of Minnesota. J. H. Mitchell, Jr. (Tilden R. Selmes, on the brief), for plaintiff in error. Clapp (Mr. McDonald and L. D. Barnard, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. This action was brought in the cir· cuit court of the United States for the district of Minnesota by the defendant in error, Eugene Teeter, against the plaintiff in error, the Northern Pacific Railroad Company, to recover for personal injuries received under the following circumstances: The defendant in error was in the service of the railroad company, as a brakeman on a freight train, from December 31, 1891, until March 9, 1892, on which last·named day he received the injury complained of, while in the act of coupling cars on the side track at Jewett's Mills, Wis. At the time the accident occurred, the track where it occurred was covered with a thick slush of snow, ice, and water, to the depth of one or two inches, which concealed from sight the condition of the track under it. At the moment of making the coupling, which was done at a proper place, and. in the usual and proper manner, the plaintiff was compelled to take a step forward, when his foot went through the slush, and down into a hole in the track from six to twelve inches in depth, which pitched hUn forward with so much force that, to save himself from falling between the cars and being run over by them, he threw his hands out to catch something to support himself, and one hand caught on the drawbar, and was on the instant crushed, as the cars "slacked back." He could not see the hole he stepped into on account of the slush, and did not know it
tending to show that the hole was there. There was no in the track was of recent origin, or that it was not a defect in the original construction Qf the track; and there was testimony tending to show that the side track where the injury occurred was not well ballasted or surfaced. The plaintiff had never seen this track when it was not covered or more or less obscured from view by snow and slush, and had never dOJ,le any work on it at the place where the accident decurred before that day. . There were a verdict and judgment for tlle plaintiff, and the defendant sued out this writ of error. The defendant, at th(> close of the whole evidence, asked the court to instruct the jury to return a verdict for the defendant, and the refusalof the court to give this instruction is the first and principal error relied on to reverse the judgment. The request was rightly refused. The company owed the duty to its brakeman to keep its track where the coupling of carS had to be done in a reasonably safe condition for the performance of such It was the. function of the jury to say, upon a consideration of. all the evidence, whether the defendant had discharged this duty, and, if not, whether its neglect to do so was the' proximate cause of the plaintiff's injury, unmixed with any negligence on the part of the plaintiff. The jury round these issues against the defendant, and, under the evidence in the case, this court cannot, according to, the well-settled rule, disturb their findings. Railroad 00. v. Mortenson (decided by this court at the presentterm) 63 5,30; Railroad 00. v. Elliil, 10 U. S. App. 64.0,4 O. O. A. 454"and 54 Fed. 481; Railroad 00. v. Kelley's Adm'rs, 10 U. S. App. 537, 3 O. O. A. 589, and 53 Fed. 459, and authorities .' , , cited. There was, as ,there co.mmo:ply is in all cases of this character, $ome conflict'in the evidence, but it was the province of the jury to say/whether and how far the evidence was to be believed; When by giving credit to the plaintiff's evidence, ap.d discrediting that of the defendant, the 'plaintiff's .cause is' mMe out, the court cannot with'draw the case from the consideration of the jury.' Railroad 00. v. OOIiger, 50; O. A. 411, 56 Fed.' 20. . The court in its charge, after stating correctly the rules of law applica.ble to the case under the evidence; added:
"It is the duty of the master to search for latent or hidden defects in appliances furnished the servant t() work with, that would render them unsafe; but, notice only such defects M are patent to ordiobse)yTation,."
The defendallt excepted to ,this part of the charge. In the brief of i;he lea.rned counsel for the plaintiff in error itissaid:
,, instruction,asamere principle of law, if state(Lby itself, might not ,be considered reversible error, or stateJ;llent which could be. considered as having done any, parm (RailwA;V: Co.:v; Leverett, 48 Ark. 333, 3 S. W. 50); 'but in this instat.cll it was accomp,anied by a statement which was intended 'to/direct the attention of the jury to the' fact that it was used for the' very . purpose of laying down .a rule of lq.w. establishing the relation between the master and the servant in this particular case, the court in the course of his instructions saying: 'This ru1e I .Want to lay do\Vn tor your guidaIj.ce . in determining What was the dUty of the railroad company and the duty of the brakeman.·.. , ;
NOnTHERN PAC. R. CO. 'V. TEETER.
In view of the record and the facts in the case, and the clear and accurate statement of the law applicable to the particular facts of the case which preceded and followed this clause to the charge, it might well be held to be surplusage, or abstract and irrelevant, but clearly it was not prejudicial error. The court told the jury that, although the injury may have resulted from the neglect of the company to keep its track where the coupling of the cars was done in a reasonably safe condition for such work, yet the plaintiff could not recover if he knew, or had a reasonable opportunity to know, of its unsafe condition; saying to the jury in this connection that:
"If the injury was caused by reason of the simple fact that there was snow and ice and sleet upon the side.track, and that was plainly seen by the plaintiff, then he ought not to recover; but if the injury was caused by reason of the side track not being properly built, not being filled up between the ties, and not being leveled, and the snow and water and ice prevented the plaintiff from seeing that, then it is carelessness on the part of the railroad company. for which the plaintiff ought to recover in damages."
On the question of the defendant's negligence, the pleadings and the evidence related solely to this hole in the track into which the plaintiff stepped. No other defect in the track was alleged in the complaint or proved at the trial, and no other ground of recovery was stated in the complaint or claimed at the trial. The only defect in the track, latent or patent, was the hole, and the only act of negligence charged upon the defendant was the maintenance of this hole. Under the pleadings and the evidence, the jury could not have found that there was any other defect in the track, or any other act of negligence on the part of the defendant, and could not, therefore, have been misled in any way by the instruction. The only possible application of the instruction to the facts of the case which the jury could have made under the pleadings, the evidence, and the instructions, taken together, was that the fact that the alleged hole in the track was latent,-that is, coocealed from sight by the slush at the time of the accident,-would not excuse the defendant, or impose on the plaintiff the duty of searching it out. The jUdgment of the circuit court is affirmed. SANBORN, Oircuit Judge (dissenting). The defect complained of in this case was a hole in the roadbed, so filled with melting snow that the surface appeared to be level. The court, in its charge to the jury, said with reference to this defect:
"It is the duty Of the master to search for latent or hidden defects in appliances furnished the servant to work with, that render them unsafe; but the servant is required to notice only such defects as are patent to ordinary observation. This rule I want to lay down for your guidance in determining what was the duty of the railroad company and the duty of the brakeman."
The hole would have been patent to ordinary observation if it had not been concealed by the snow, and this proposition is, in effect, that, in a country whose surface is covered with snow four months in the year, the seryant of a railway corporation is not required to notice any defects in the roadbed. or appliances of the company, otherwise patent, that are concealed by the snow, and thus made v.63F.noA-34
latent;' .but the. corporation: is 'l"equiredtosearch for&'uch defects, 'andto remove the snow fl'OIh'them, so that they will become patent again before the servantilil to notice them. I am unable to assenttothis. proposition; In my opinion, it is not the law. Nor 'can 1 bring myself to concur in the theory that because the court below, in: another portion of the charge, stated the converse of this thelaw prejudice could have resulted:tothe plaintiff .in: errQrfrOm thjs erroneous declaration. The presumption is that errol' produces prejudice. It is only when it appears so clear as to be beyond doubt that the el'J."()l' complained of neitheE did prejudice, nor could have prejudiced the party against whom it was made, that the 'rule that error without prejudice is no gro'lrt,ld f(},r reversal is justly appliGitble. Deery v. Cray, 5 Wall. 795, 808; Gihnh v. Rigley, 110 U.S. 4,7, 50, 3 Sup. Ct. 471. The court be19W,in its charge, gave the :jury a correct and an erroneous instruction upon the same subject. T am unable to discover from the .record whether, the jury govel'Il,ed in their action by the former or the ,latter, anq in my 9pinioo,tb,e. judgment should be reversed, and a pew trial Qroered.
NORTHERN PAC. R. CO.v.MORTENSON.
(Circuit Court of APpeals, ElghtllCh'cult. ":'1,';" .. i.' , , ,
MASTEn AND SIllRV'A,liT-IN.tuRI'ES ToRAILWAy BRAJrEMAN OVluUtIUD BEAYSLPROVINCE OF JURY.
Whe,ieabrakeman, standing on the running board of a furniture car. fs hlg)ler than box Cars, in the discharge of his duty, was struck by the.overhea:d tie beams of a bridge which the train was crossing, held, that It",aa the province of'tI'le jUry to Bay whether the company was negligent ·In maintaining a bridge having' such low beams, without giving warnlug by telltales or otherwise. The brakeman having crol3sed the bridge several times standing on top of box cars, held, further, that it was a question for the jury whether he was.. of" negllgenqe In not ascertaining, by measurement ,Ol" accurate 9bservatioQ.. that he could not safely pass while standIng on the running board of a furniture car.
'FIXING DATE BY MEMORANDUM ERROR WITHOUT PREJUDtCE. RIGHT OF INSPECTION-
SAME-CONTRIBUTORY NEGLrGENCE-PROVINCE 011' JURY.
In . testifying as. to the length of time. Qe .was in defendant's ill. date of entering the service by a m. emorandum, but the to . permit defendant, to .Inspect the memorandum. Held, that this was error, but, the length of his service .t>eing fUlly established by the error was wIthout prejudice. emPloy.,
In Error to the Circuit Court of the United States for the District -of Minnesota. ' This was an action by Andrew Mortenson against the Northern Company. to recover damages for personal injuries. Verdict 'and judgment were given for plaintiff, and defendant sued -out this !Writ of e r r o r . ' ,