The plaintiff, an employee of the railway company, sued to
recover for injuries caused to him by the unblocking of a frog, in
consequence of which he was thrown down, and an engine passed over
him before he
Page 163 U. S. 486
could recover himself. There was contradictory testimony as to
the
condition of the frog before and after the accident. On the
trial below,
the only issue presented was the condition of the frog at the
time of
the accident, but the court in substance instructed the jury
that if the
company had once properly blocked the frog, it incurred no
liability to
its employs by reason of the subsequent displacement of the
blocking
unless such displacement was made with its knowledge or had
continued
for such length of time as to impute notice to it. The same
point having been taken in this Court,
held,
(1) That there being a conflict of testimony as to the condition
of the frog, that question of fact was properly submitted to the
jury.
(2) That while the position of law taken by the company in this
Court cannot be disputed, it was not taken or considered on the
trial, and is not open for consideration here.
(3) That although the case is not entirely clear, this Court is
not prepared to hold, on the record, that there was such error as
would justify it in disturbing the judgment.
On April 12, 1890, defendant in error filed his petition in the
district court of Pottawattamie County, Iowa, to recover of
plaintiff in error $20,000 for personal injuries. From the
petition, it appears that he was a brakeman in the employ of the
railway company; that the injury occurred at the Town of North
Bend, in the State of Nebraska, and that it was caused by reason of
his catching his foot in the narrow angle or frog made by the
junction of the main and side tracks at that place, from which frog
he was unable to extricate himself until an engine had passed over
him. It was alleged that the blocking of such frog is the proper
duty of every railway company, upon the performance of which every
employee has a right to rely, and, further,
"that in fact said angle or frog was not then, and had not been,
blocked or filled, but was in a very dangerous and hazardous
condition by reason of not being blocked or filled, all of which
the said defendant then and there knew, but of which said plaintiff
had no knowledge whatever."
The defendant answered with a general denial, and by amendment
that the plaintiff was entirely familiar with the condition of the
tracks at North Bend, and by virtue of such knowledge waived the
right to take advantage of any alleged defect in their condition.
The case was removed, on application of the railway company, to the
Circuit Court of the
Page 163 U. S. 487
United States for the Southern District of Iowa. Trial being
had, it resulted in a verdict and judgment for the plaintiff, which
was affirmed by the Court of Appeals of the Eighth Circuit, 56 F.
1001, to reverse which judgment the railway company sued out this
writ of error.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The issues in this case were made up by the charge in the
petition that the frog was not and had not been blocked, which
charge was denied, and which denial was supplemented by the further
allegation, on the part of the railway company, that the plaintiff
knew the condition of the tracks, and continued in defendant's
employ with full knowledge of the same, waiving thereby the right
to complain of any supposed defect.
The testimony of plaintiff was that at the time of the accident,
about one o'clock in the morning, the frog was unblocked. In
addition, he called five witnesses, who testified that on the next
morning they examined the track and that there was no blocking in
the frog, or, as one of them said, "the same as no blocking at
all." On the other hand, the defendant introduced the testimony of
seven witnesses who examined the track either the next morning or
soon thereafter, and each of whom found the frog properly blocked
-- one of them, the section foreman, testifying that before the
accident, he had himself put the blocking in.
Obviously the question which the parties submitted to the jury
was that of the existence or nonexistence of a block in the frog at
the time of the accident. It is contended by the railway company
that the court erred in failing to give a peremptory instruction to
find a verdict for the defendant. The only witness who testified to
the condition of the frog
Page 163 U. S. 488
at the time of the accident was the plaintiff, and he testified
that it was an unblocked frog, and while the section foreman
testified that it was blocked before, and that he found it the
Sunday after in the same condition that he had originally placed
it, and while there was testimony of several witnesses that,
immediately after the accident, the frog was found to be properly
blocked, yet there was also equally satisfactory testimony to the
contrary. As this latter testimony obviously contradicts that of
the section foreman as to the condition of the frog after the
accident, it tends to impeach it as to placing blocking in the frog
prior thereto. At any rate, in view of the plaintiff's personal
testimony, there was certainly a question of fact, to be submitted
to the jury as to whether the frog was or was not blocked at the
time of the accident, and their conclusion in that respect cannot
be challenged, and it would have been error for the court to have
given a peremptory instruction, based either way, upon this
disputed question of fact.
Again, it is said that the only testimony as to the condition of
the frog prior to the accident was that of the section foreman, who
testified that he had properly blocked it, and that, if that be
ignored, there was no testimony tending to show that it was not at
some time properly blocked and the block removed without the
knowledge of or notice to the railroad company. The statement of
the section foreman may be considered as challenged by the
counter-testimony of plaintiff and his witnesses, and, in the
absence of any testimony as to the condition of the frog prior to
the accident, the jury were not bound to assume that the frog had
once been properly blocked and the blocking thereafter removed or
destroyed. They were at liberty to infer that it never had been
blocked, that the track as originally constructed at this place was
as it was found to be at the time of the accident, and so a case
was presented of the absolute omission of the railroad company to
discharge its duty of providing a safe place for the movement of
its trains and the work of its employees.
It is earnestly insisted by counsel for the railroad company
that the court improperly narrowed the issues submitted to
Page 163 U. S. 489
the jury by charging that the single question was whether the
frog was blocked or not at the time of the injury, and it is urged
that the true rule is that if the railroad company had once
properly blocked the frog, it incurred no liability to its
employees by reason of the subsequent displacement of the blocking
unless such displacement was with its knowledge, or had continued
for such a length of time as to impute notice to it. We do not
question the proposition of law as thus stated, but the difficulty
is that no such issue was tendered by the pleadings, and the
parties evidently went to trial upon the single question whether
the frog was or was not blocked at the time of the accident. The
charge in the petition was that the frog was not and had never been
blocked. The answer denied this fact, and did not assume to set
forth as a defense that it had once been blocked, and the block
displaced without the knowledge of or notice to the railroad
company. The railroad company was apparently content to rest its
defense upon the single question of the existence of blocking at
the time of the injury. The testimony went to that alone. In
respect to this matter, the trial judge, in overruling the motion
for a new trial, observed as follows:
"The argument now advanced by defendant in support of his motion
is that even if the frog was unblocked, that fact, of itself, would
not make defendant liable for the injury resulting therefrom; that
the proof must go further and bring to defendant knowledge of such
unblocked condition. Either defendant must be proven to have had
actual notice of such unblocked condition or such condition must be
proven to have existed so long as that, in the exercise of ordinary
care, defendant should have discovered it. Defendant contends the
proof did not fulfill these requisites as to notice, and that the
jury were not instructed with reference to applying these
requisites to the evidence."
"Neither in the opening statement to the jury nor in the
argument to the jury after the evidence had closed did counsel for
defendant lay his case on the line of these requisites. Throughout
the trial, the position of defendant was that the frog was blocked
at the time of the injury. Both in opening
Page 163 U. S. 490
statement and in closing argument, defendant's counsel insisted
the frog was blocked at the time of injury. To this defendant's
evidence was pointed, and in fact limited, so far as it tended to
refute the charge of negligence alleged and attempted to be proven
by plaintiff. Defendant did not attempt to escape or avoid, by any
showing of sudden tearing out of the frog, whatever force attended
plaintiff's evidence as to an unblocked condition of the frog. On
neither side was any testimony introduced tending to show any
sudden destruction of blocking at this frog. But on either side the
contest was as to whether the frog was in fact blocked at the time
of the injury. Plaintiff rested his claim touching the cause of the
injury on the attempt to prove such injury was caused by the frog
being unblocked at time of injury. And defendant was equally
content, as to evidence introduced, in attempting to prove the frog
was then blocked. And defendant's counsel limited his argument to
the jury upon the evidence to this same line of defense."
Yet notwithstanding the pleadings and the testimony seemed to
narrow the issue to this particular matter, the court, in its
instruction, discussed the further question of the liability of the
company in case of an original proper blocking of the frog and its
subsequent displacement. It said, among other things, on this
matter:
"If evidence had been introduced to show that suddenly, by some
disarrangement of the machinery of the train, the wooden part of
the frog or blocking had been pulled out of the frog at the time so
near the injury as that the company could not have been charged
with negligence in not having found it out reasonably by
inspection, through its workmen or otherwise, before the injury,
then, in an accident of that kind, the company would not be liable
for the injury to plaintiff, because the company would not have
been negligent in not ascertaining that the block had been thus
removed."
So that it cannot be said that the proposition of law upon which
counsel for the railroad company so strenuously insists was wholly
ignored on the trial. It was in fact presented by the court to the
jury, although, it is true, coupled with the
Page 163 U. S. 491
statement that the issues made by the pleadings and the silence
of the testimony in respect to the prior situation narrowed their
inquiry to the single matter of the condition at the time of the
accident.
It must be confessed that this case is not entirely clear, and
yet, considering the entire record, we are not prepared to hold
that there was error such as would justify this Court in disturbing
the judgment.
It is therefore
Affirmed.
