Illinois Central Railroad v. Emmerson

delivered tbe opinion of tbe court.

We are clearly of the opinion .that Emmerson brought his death upon himself by his own contributory negligence in the management and handling of his train. He had the caboose in front of the engine in going down to the place of the wreck, and kept it in front; a chain being fastened to the caboose and the derailed engine. The caboose, of course, operated to obstruct the view of the engineer. The coupling of the end of the tender, in its dilapidated condition, to the drawhead of the caboose of his own train, was made with a chain from ten to twelve feet long; and there was left, in this chain, a “slack” estimated from three to eight feet. Emmerson himself arranged this coupling. The defendant’s testimony, by the witness, Erazier, was to the effect that the derailed engine could have been attached, leaving not more than a foot of slack, and it is perfectly obvious, if this had been so done, the derailed engine could never have ridden the platform of the caboose and caused this injury. One of the witnesses for the plaintiff, Brazile, testifies that the less slack you had the better, if the derailed engine was to be pulled some distance. Three witnesses, Erazier, J. J. Duffy, and J. M. Ansley, all for the defense, the latter the conductor of the other train, testified that they told Emmerson it was very dangerous to operate the train in such a ivay, with such slack. Erazier said that he told Emmerson to stop and take up the slack; that it was very dangerous; that it ^was too much, and if he did not stop, the éngine would run into him; that he said, “no, it was all right;” that he told Emmerson that he himself would not stay out there, and was going into the caboose, four to ten minutes before his injury. Erazier also testified that Duffy told Emmerson that the slack was unsafe, and that Emmerson told him to go away and let him alone; that he could handle it; and that Duffy then went to the other end of the caboose. Ansley testified that he *608told Emmerson lie had better chain the engines better, that he had them in 'a very bad condition, and that Emmerson said he would fix them. The testimony of these three witnesses is uncontradicted in this respect, that they called Emmerson’s attention directly to the dangerous condition of the fastening, and especially warned him, and that he declined to remedy it, saying he would fix it, meaning later. Even if it be conceded that it was the riding of the platform of the caboose by the engine which knocked the rod down on Emmerson and killed him, it is none the less true that it was the slack which enabled the engine to so ride the platform. If the engine had been properly chained, the injury could never have occurred. However much we may deplore the misfortune, it will never do to sacrifice the principles of law by making a bad precedent to suit a hard case.

The servant certainly takes upon himself, whenever sent to construct or repair, whatever of added risk may come from the existing condition of the place in which, or the appliance with which, he is to work (2(3 Am. & Eng. Ency. Law, 132), where such condition is obvious to him and not known to the officer sending him. This must certainly be so in a case like this, where the servant had his attention specially called to the dangerous method he himself adopted, and refused to correct the improper coupling. If it should be conceded that the order of Jones, trainmaster, to Emmerson, vas an order which J>ut him to work outside his proper department, that does not, of itself, necessarily make the company liable for injuries received by Emmerson while engaged in such work, if the injuries resulted from Emmerson’s own contributory negligence on the spot and at the time. Contributory negligence is still a good defense, if it exist in such a case. 3 Elliott on Railroads, sec. 1304. We think it perfectly clear that Emmerson was guilty of contributory negligence, and hence the peremptory instruction should have been given.

Reversed and remanded.

delivered the following dissenting opinion.

Conceding that, under the facts of this case, the defense of contributory negligence be available to the appellant railroad company, I do not think the record presents one of those “rare cases of negligence” in which the trial court is authorized to take the case from the jury. The proximate cause of the injury was not the conduct of Emmerson, but the damaged and dangerous condition of the wrecked engines which he had been sent to remove. It is true that he knew of their condition, but it is likewise true that the engines were not, within the meaning of the constitution, “Voluntarily operated” by him. Hence, knowledge on his part cannot avail the railroad company by whose direction he was transferred from his usual department of labor to another and more dangerous sphere of duty. I humbly submit that the conclusion of the court renders the constitutional provision that “knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense for injury caused thereby” ineffective and inapt. To be consistent, the court must go further, and hold that an employe who performs an act, outside of his regular duty, in obedience to a direct command, acts “voluntarily,” and that an engineer or conductor in charge of a work train ordered to clear away and remove'a wreck “voluntarily operates” the wrecked cars and engines when hauling them off.

Hpon the facts, in my judgment, the jury correctly solved the disputed question of proximate cause, and, having decided, under the proof, that the death of Emmerson was not caused by his contributory negligence, the appellee is entitled to recover.

delivered the following opinion in response to a suggestion of error.

Section 193 of the constitution does not, in our view, have anything to do with the decision of this case. The death of Emmerson was not due to any defect in the ways or appliances. It was due directly to his own negligent method of coupling the engine *610to the caboose and' handling his train, and that, too, after'having been three times solemnly warned of the danger of his method of procedure. In other words, it is a simple case of contributory negligence. The negligence consisted, as stated, not in defective ways or appliances furnished by the railroad company, but in the grossly negligent and reckless manner of handling his train and coupling the engines to the caboose on the part of the unfortunate man. There is, therefore, no case made here as to knowledge of defective machinery, or defective ways or appliances, or of a locomotive voluntarily operated by the engineer. None of these elements have anything to do with this case as we view it. The very ingenious and able argument of the learned counsel for the appellee deals chiefly with the supposed application of sec. 193 to the case in hand. We cannot discover any connection between the provisions of that section and the case made by the facts in this transcript. As said, the unfortunate man owes his death directly to his own contributory negligence.

Suggestion overruled.

delivered the following specially concurring opinion on suggestion of error.

Judge Truly thinks the suggestion of error should be sustained. The Chief Justice and the writer think it should be overruled. The Chief Justice and the writer think so because they are of the opinion that see. 193 of the constitution has no reference to the facts in this record, but the writer is not of the opinion that a peremptory instruction is predicable of the facts, but thinks that, on the.remand, the jury should determine as to ■proximate cause and negligence, on instructions charging the law, and not leaving it to them to determine the law, or mixed law and facts.