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KANE V. NORTHERN CENTRAL RY. CO., 128 U. S. 91 (1888)

U.S. Supreme Court

Kane v. Northern Central Ry. Co., 128 U.S. 91 (1888)

Kane v. Northern Central Railway Company

No. 8

Submitted October 12, 1888

Decided October 22, 1888

128 U.S. 91


In an action by an employs of a railroad company against the company to recover damages for personal injuries received by reason of the negligence of the company, in order to determine whether the employ, by recklessly exposing himself to peril, has failed to exercise the care for his personal safety that might reasonably be expected, and has thus by his own negligence contributed to causing the accident, regard must always be had to the circumstances of the case and the exigencies of his position, and the decision of this question ought not to be withheld from the jury unless the evidence, after giving the plaintiff the benefit of every inference to be fairly drawn from it, so conclusively establishes contributory negligence that the court would be compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor.

Page 128 U. S. 92

This was an action to recover damages for personal injuries sustained by the plaintiff while in the discharge of his duties as an employee of the Northern Central Railway Company. It was based upon the alleged negligence of the company in not providing suitable and safe appliances for the cars on which the plaintiff was assigned for duty. At the conclusion of the evidence introduced in his behalf, the court directed a verdict for the company.

It was in evidence that at midnight in the month of February, a train of freight cars belonging to or being operated by the defendant left Marysville, on its line of road, for the City of Baltimore. The rear car was the caboose; the third car from the caboose was an ordinary "house-car;" the fourth one was laden with lumber. The car upon which the plaintiff was required to take position while the train was in motion was about the eighth or tenth one from the caboose. His principal duty was to "brake" the train from that car back to the caboose. When the train, moving southward, was going into York Haven, twenty miles from Marysville, the plaintiff, while passing over it for the purpose of putting down the brakes, discovered that the third car from the caboose had one step off at the end nearest the engine, and immediately called the attention of the conductor to the fact. The conductor promised to drop that car at the coal yard or junction beyond them in the direction of Baltimore if, upon looking at his manifests, he found that it did not contain perishable freight. When the train stopped about four or five o'clock in the morning at Coldfelters, some miles north of the coal yard or junction, the plaintiff went to the caboose to eat his breakfast and warm himself. It was snowing, freezing, and sleeting. One of the witnesses testified that

"it was a fearful cold night, raining and sleeting; the train was covered with ice and snow; . . . it was most bitter cold; the rain was freezing as it fell; a regular winter's storm."

While the plaintiff was in the caboose eating his breakfast, the train moved off. He immediately started for his post, leaving behind his coat and gloves. Upon reaching the south end of the third car from the caboose, he attempted to let himself down from it in order

Page 128 U. S. 93

to reach the next car ahead of him, which was the lumber car, and pass over the latter to the one on which he usually stood while the train was in motion. At the moment he let himself down from the top of the house car, he forgot that one of its steps was missing, and, before realizing the danger of his position and without being able then to lift himself back to the top of the car, he fell below upon the railroad track and between the wheels of the moving train, causing him to lose both legs. The plaintiff testified that if at the moment of letting himself down from the top of the car, he had recalled the fact that one of its steps was gone, he might have pulled himself back with his hands or have "slid down" on the brake rod, for he had before climbed up and down by holding that rod with one hand and putting his foot against it and pulling himself up until he touched the running board. He testified that he could not remember how his mind was occupied at the tune; "only going to my post, my mind was on that; going where I had the right to be." Again:

"When the accident happened, I was going to my place on the train. I had no other duty on the top of the cars as the train was moving off, unless the engineer calls for a signal, and generally he does do that when the train is moving off. There is occasion for it in all places where the train starts or stops, only in cities, where we aren't allowed to blow them. We are required to notice the train when it is running to see that it is all going; the train might start and go one hundred yards and then break loose."

This was, in substance, the case made by the plaintiff's evidence.

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