Where the case is within the class which it was the purpose of
the Judiciary Act of 1891 to submit to the final jurisdiction of
the circuit court of appeals, this Court goes no further than to
inquire whether plain error is made out.
Texas & Pacific
Railway v. Howell, 224 U. S. 577.
Under the Safety Appliance Acts, the failure of a coupler to
work at any time sustains a charge of negligence on the part of the
carrier.
C., B. & Q. R. Co. v. United States,
220 U. S. 559.
Where the trial court and the circuit court of appeals have,
after considering the evidence, confirmed the verdict, this Court
will hesitate to say that their concurring judgments are not such
as could be reasonably formed or are without foundation as matter
of law.
One obliged to form a judgment in an emergency on the spot is
not to be held accountable in the same measure as one able to judge
the situation in cold abstraction.
The Germanic,
196 U. S. 589.
The movement of trains requires prompt action, and one engaged
therein should not be held guilty of contributory negligence
because he did not anticipate that he might be injured if he
selected one of several ways of performing his duty even though he
had knowledge of the existence of that which caused his injury.
185 F. 80 affirmed.
The facts, which involve the construction of the Safety
Appliance Acts and determination of what constitutes contributory
negligence on the part of a switchman in a railway yard, are stated
in opinion.
Page 229 U. S. 318
MR. JUSTICE McKENNA delivered the opinion of the Court.
Error to review a judgment of the circuit court of appeals
affirming a judgment of the Circuit Court for the Northern District
of Illinois for $8,000, in an action brought by Brown, defendant in
error, against the railway company for injuries received by him
while working as a switchman in the railway company's yards at
Chicago.
The action was brought in the state court and removed on the
petition of the railway company to the federal court.
The first count of the declaration is based upon a violation of
the Safety Appliance Act, and it also contains allegations based
upon the Employers' Liability Act. The company was engaged, and
Brown was employed, in interstate commerce. The fourth count
charges negligence in failing to fill up the space between a
running rail and a guard rail, in which space Brown's foot caught,
where it was run over and his leg cut off.
The case was tried to a jury, resulting in a verdict for $8,000
for Brown upon two counts: (a) for a violation of the Safety
Appliance Law, (b) common law negligence in not blocking the
switches. Judgment was entered upon the verdict, which was
subsequently affirmed by the circuit court of appeals. 183 F.
80.
For the purpose of the contentions which are made here, the
following facts must be accepted to be established, as summarized
in the opinion of the circuit court of appeals:
"The defendant in error, a switchman in a large switch yard, was
called upon at night to uncouple some cars.
Page 229 U. S. 319
Not being in touch by signal with the engineer, he conveyed his
signals to another switchman in advance of him, who conveyed them
to the engineer. The cars were in motion on a car track at the
time. The uncoupling was to be done by means of shoving the cars in
motion. Had the safety appliance been in order, this could have
been accomplished by defendant in error while walking at the side
of the train. But the safety appliance on the side of the car on
which he was working at the time would not operate. He gave three
or four jerks to it, which failed to open the coupler. He then
reached in between the cars and attempted to lift the coupler pin
with his fingers, which he was unable to do. He then attempted to
reach the pin on the adjacent coupler in order to lift that with
his fingers. During all this time, he was walking beside the cars,
which were moving slowly. The pin-lifting rod on the other car
projected not towards him, but away from him, and as he was
reaching for the coupler pin on this adjacent coupler, his foot
slipped, and a low brake beam, striking his foot, shoved it into an
unblocked guard rail, where it was run over and his leg cut off.
Had he, under these circumstances, abandoned the uncoupling
altogether until the car had come to a standstill, he would have
been saved the accident."
These being the facts, the railway company asserts error in the
trial court in not directing a verdict for the company on the
ground (1) that Brown, in leaning between the cars while they were
in motion, was guilty of contributory negligence as a matter of
law, and (2) in instructing the jury, in effect, that Brown was not
chargeable with contributory negligence by the mere fact of going
between the cars.
The contentions are resolvable into one, and may be said to be
covered by the charge to the jury which the railway company
attacks. The court, after stating that the first count of the
declaration is based on the failure
Page 229 U. S. 320
of the company to equip the car with such a coupling device as
that it could be operated without the switchman going between the
ends of the car, said:
"This first count charging the failure I have just referred to
is based upon the act of Congress imposing certain requirements
upon common carriers engaged in interstate commerce, and this
statute provides that a carrier so engaged shall not move or permit
to be moved on its rails a car that is used in interstate commerce
unless so equipped. This act also provides that if an employee
engaged in the service of such a carrier sustains an injury by
reason of the carrier's failure to obey that law, the employee
shall not be held to have assumed the risk of danger or injury
resulting from such failure on the part of the carrier. It is also
the law, having in mind still this first count, that if the
employee goes between the cars to effect an uncoupling, he is not
chargeable with contributory negligence -- that is, a failure to
exercise ordinary care for his own safety -- by the mere fact of
going in between the cars to effect the uncoupling, but he is
required, before he can recover, to exercise ordinary care for his
own safety after he goes between the cars, and, while he is there,
endeavoring to effect an uncoupling -- that is, the separation of
the cars."
The counsel for the company at the outset expressed their
realization that this case is one of those characterized in
Chicago Junction Railroad Company v. King, 222 U.
S. 222, as of the class which it was the purpose of the
Judiciary Act of March 3, 1891, 26 Stat. 826, c. 517, to submit to
the final jurisdiction of the circuit court of appeals, and that
this Court under such circumstances will "go no farther than to
inquire whether plain error is made out."
Texas & Pacific
Ry. Co. v. Howell, 224 U. S. 577. And
the concession is made that in the
Taylor case,
210 U. S. 281, and
in
Chicago, B. & Q. R. Co. v. United States,
220 U. S. 559,
this Court settled that the failure
Page 229 U. S. 321
of a coupler to work at any time sustains a charge of negligence
in this respect, no matter how slight the pull on the coupling
lever. And further, "[t]he mere fact that the pin would not lift
when plaintiff [Brown] endeavored to lift it makes a case of
negligence under the first count." Contributory negligence is
asserted because Brown knew, as it is contended, that he would have
to pass over an unblocked guard rail; that, besides, he controlled
the situation, it is contended, through signals to the engineer,
and that he had two safe methods in which to make the cut of the
cars, but voluntarily and for his own purpose chose the most
dangerous method.
But all these facts and how far they should have affected his
conduct were submitted to the jury. The evidence detailed the
situation to them and whether the judgment of Brown was prudently
formed and exercised.
The trial court and the circuit court of appeals, considering
the evidence, confirmed the finding of the jury, expressed by its
verdict. It would be going far to say that these concurring
judgments are not such as could be reasonably formed, but such as
must be pronounced to be without foundation as a matter of law.
The railway company starts its contentions with a concession of
its own culpability in sending Brown to his duty to encounter
defective appliances, and then seeks to relieve itself from
liability by a charge against him of a careless judgment in its
execution. But some judgment was necessary, and whether he should
have selected one of the ways which counsel point out admits of
debate. It is one thing to judge of a situation in cold
abstraction; another thing to form a judgment on the spot.
The
Germanic, 196 U. S. 589,
196 U. S.
595-596. The movement of trains requires prompt action,
and we cannot hold that, as a matter of law, Brown, in leaning
forward to remove a pin which would have yielded to his effort, was
guilty of negligence because he did not anticipate that his
foot
Page 229 U. S. 322
might slip and be caught in an open frog rail of which he had or
could be charged with knowledge. The case is within the ruling in
Texas & Pac. Ry. Co. v. Harvey, 228 U.
S. 319.
Judgment affirmed.