US SUPREME COURT DECISIONS

Accident Ins. Co. v. Crandal, 120 U. S. 524, affirmed to the point that the refusal of the court to instruct the jury at the close of the plaintiff's evidence that he is not entitled to recover cannot be assigned for error if the defendant afterwards introduces evidence.

Under all the circumstances set forth in the statement of facts and the opinion of the court, it was for the jury to determine whether the failure on the part of the plaintiff to work with his fellow servant was in fact contributory negligence on his part, and on the whole case it appears that the cause was submitted by the court to the jury fairly, and with an accurate statement of the law applicable to the relation between the parties.

This is an action at law brought by the defendant in error, Richard Mares, against the Northern Pacific Railroad Company in the District Court of the Third Judicial District of the Territory of Dakota, to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant by reason of its alleged negligence.

The complaint alleges that on October 31, 1881, the plaintiff was in the employ of the defendant as a brakeman on duty as such in the yard at the City of Fargo, used for the purpose of switching cars to make up trains, in which service a switch engine was used; that at the time of the injury, the engineer of the switch engine was one Bassett, who, it is alleged, was a man of hasty and excitable disposition and ungoverned, violent, and hasty temper,

"and was and had

Page 123 U. S. 711

for a long time been, while in the employ of this defendant as engineer, accustomed to become unduly and dangerously excited and angry, and while under the influence of anger or excitement, and while in the performance of his duty as engineer, was and had been accustomed to act the conduct himself as engineer in a most reckless manner, causing great danger and peril to his fellow servants, and especially to the brakemen on the train or cars attached to or moved by the engine on which he was engineer,"

and that in consequence thereof

"the said engineer was at the time of the injury hereinafter referred to, and for a long time prior thereto had been, negligent, unskillful, unfit, and incompetent to act as engineer of said switch engine, or of any engine or locomotive, of which facts the defendant had notice and knowledge and by the use of ordinary diligence defendant would have discovered and learned that he was a negligent and an unfit, unskillful, and unsafe engineer. And this plaintiff had not notice or knowledge prior to the injury to him hereinafter referred to that the said engineer was for any reason or on any account and unfit or unsafe person to act as engineer."

It is further alleged that at the time of the injury, the plaintiff

"was required, in the performance of his duties as switch brakeman, to set or fasten or to loosen the brakes of the cars which were being switched or moved in the said yard, and he was at the time and place aforesaid required to perform the said duty on the cars of the defendant, which were being switched and moved by the engine in which the said Bassett was engineer, and in the moving of cars it was his duty as brakeman to give signals to the said engineer, and of the said engineer to obey such signals; that at the time and place aforesaid, and while this plaintiff in the performance of his duties as brakeman as aforesaid, was upon the top of the freight car (part of a train) being removed in the said yard by the engine in which the said Bassett was engineer, and while the said Bassett had control of and was managing said engine, this plaintiff, as it was his duty to do, gave the said engineer a signal to move and 'back' the cars attached to the said switch engine the length of a certain number of cars

Page 123 U. S. 712

indicated by the signal. And the plaintiff, as he was in duty required to be, was standing on the top of the rear car so being moved backward, and before said cars had been moved backward the distance which they were intended to be removed and the distance which the signal, given by this plaintiff, required them to be removed, the said engineer unskillfully, negligently, recklessly, and suddenly, and contrary to his duty, stopped and reversed the said switch engine and the cars attached thereto, and thereby threw the plaintiff off the rear car where he was standing and where it was his duty to stand, to the ground, and thereupon the said engineer suddenly, negligently, recklessly, and violently and unskillfully, then and there, and before the plaintiff had time to or could move out of the reach of the cars or off the track, moved and pushed the said engine and cars backward upon said track and onto and over the plaintiff, and thereby greatly injured the plaintiff, and crushed and broke both of his legs, so that it then and there became and was necessary to amputate them, and they were then and there, on account of said injuries, amputated,"

etc.

The answer of the defendant alleged

"that the said fall of the plaintiff and his said injuries resulting therefrom were solely caused either by the negligence of the plaintiff himself or by that of some one or more of the other employees of the defendant engaged at work together with the plaintiff in the defendant's said yard at the time of the happening of the said injuries, and not by any negligence or fault on the part of the defendant."

The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff of $20,000, and costs. An appeal was taken from the district court to the supreme court of the territory, where it was heard upon a record containing a statement on motion for a new trial, which it was stipulated might be treated as a bill of exceptions. It embodies all the evidence upon the trial, with the rulings of the court during its progress, and the charge of the court to the jury, with all the exceptions thereto noted. The judgment of the district court was affirmed. From that judgment the present writ of error is prosecuted. chanrobles.com-red

Page 123 U. S. 713