TEXAS & P. RY. CO.
RHODES. December 10, 1895.)
'rEXAS & P. RY.
(CircUit Court of Appeals, Fifth Circuit.
ACTION AGAINST RAILROAD COMPANy-INJURY TO EMPT,OYE-COUPLING CARB-
In an action against a railroad company for injuries received by an while coupling cars, through the disparity in heights of the drawheads of the cars, which was alleged to be due to the sagging of one of the drawheads, caused by defects in the carrier iron, defendant asked the court to charge that defendant was not bound to furnish plaintiff absolutely safe machinery, but owed him the duty of furnishing such as would be reasonably suitable, and to exercise ordinary care to see that it was kept in like condition, and that, in determining this, the jury might consider whether it was usual for defendant to have on its line cars with different heights of drawheads, and also whether those engaged in the transportation and inspection of cars would, in the exercise of reasonable care, consider such defects as were shown by the evidence as such that would likply occur which might be reasonably anticipated by employes. Held, that it was error to refuse such charge, the substance thereof not being covered by any charges given. One paragraph of the charge conveyed the idea that if plaintiff actually knew the of the drawhead on the defective car, he could not recover, but that if he did not know which particular car he was coupling, and did not know whether the defective draw head in that car had been repaired, he would be free from contributory negligence. The evidence was conflicting as to whether plaintiff did identify this car, and as to whether he should have identified the car, or known whether it had been repaired. Held, that it was error to refuse to charge that, though the drawhead had been allowed to become lower than it should have been, plaintiff could not recover, if he knew of this fact, or should have known of it by the exercise of reasonable care.
In Error to the Circnit Court of tbe United States for the Northern District of Texas. T. J. Freeman, for plaintiff in error. Humphreys and W. P. McLean, for defendant in error. D. Before McCORMICK,Circuit Judge, and BOARMAN and SPEER, District Jndges. BOARMAN, District Judge. Plaintiff below ftled his original snit in the district court of Callahan county, Tex., and it was subsequently removed by the defendant to the circuit court of the United States for the Northern district of Texas. Therein judg· ment was had for plaintiff, and the defendant company, now plaintiff in error, bnngs the matter up on error to this court. The cause of action (}fdefendant in error is shown by his amended petition, filed in this court after the removal, to be as follows:
"For that: heretofore, to wit, on the 18tll day of August, 1893, plaintiff was engaged in the service of 'defendant 'as brakeman on one of Its freight trains, and while In the discharge of his duties as such brakeman attempted to couple two freight carson defendant's said road, and while attempting,to said coupling, \Yithout any fault on his part, his left hand was, by reason of the defect l1ereinafter set forth and alleged, caul/:ht betweeif the of said C111'8, and was so badly mashed and crnshp.d
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that It became necessary .to have the greater .$lId hand of. plaintitr amputated. · · · BY-reason of the negligence Of the defendant, its agents an!! eJI!.ployG8, the carrl0r Iron which supp()rted one of the .drawheads was defective. It was bent down, and the rods or bolts which supported It had been worn and loose, and the nuts on said bolts had ",orked down, and allowed said carrier iron to sag and become lower than it should have been, and by said sagged and lowered position of said carrier iron the said drawhea4,. which was supported by said carrier iron, also became and was four or .1ive inches lower than it should have been, and was thereby rendered more difficult and dangerous to coupie. From the causes aforesaid, plaintiff, in attempting to efl'ectsaid coupling, as aforesaid, had his hand caught by said lowered and defective drawhead, and pressed against the drawhead on the car to wh.ich he was trying to couple the car with the said defective drawhead, and his sald hand was crushed as aforesaid. Had said drawheads both been in proper condition and position, plaintitr could and would have effected said coupling without injury to himself. Plaintiff did not know of said defectIve drawhead, carrier iron, and bolts and loosened nuts, nor did he have an opportunIty to know of said defects before said Injury; but all of said defects were known to the defendant, or by reasonable diligence could have been known to defendant."
Defendant'a answer is, substantially, a denial of all and singular the allegations in plaintiff's petition. The plaintiff in error presents a number of assignments of error,-some of them urging objections to the charge of the trial court, and others because of the refusal of the court to give certain special instructions to the jury. The transcript shows fully, in aid of the bills of exception, all the evidence heard on the trial. The only material issue of fact, not involved in conflicting testimony, is as to the fact that the defendant company, in its transportation of cars, often hauled cars of its own, as well as cars belonging to other railway companies, with drawheads, when in good condition, with a difference in their height of as much as three or four inches. The material issues of fact involved in conflicting evidence are in relation to the incidents connected with the drawhe.ads of the cars that were being coupled at the time plaintiff's hand was injured; as to the sagging of one of said drawheads, in consequence of a defective carrier iron; as to whether there would have been any disparity in the heights of said drawheads if the sagging drawhead had been kept in good condition; as to how far the drawhead of the water car had dropped, if it had fallen at all, by reason of the sagging of the carrier iron below the drawhead. on the other car; as to whether such disparity in the heights of the said drawheads, if it was caused, as plaintiff alleges, alone by the sagging of the defective carrier iron, was greater than the plaintiff would have sODl.etimes encountered when, in t;heline of his daily work, he might be engaged in coupling drawheads in good condition but of unequal heights; as to whether the defect, if there was any, shown to exist in the drawhead of car 04, was such a defect as might reasonably come about, or occur unexpectedly, or occur at such a time, or in such a way as to make it impracticable for the company to have immediate knowledge of its existence, and to seasonably repair it;. as to whether the drawhead on car 04, having gotten, unknown to Rhodes, in bad condition, the company was guilty of negligence in not repairing it at an earlier day; as
TEXAS " P. BY. CO. fl. RHODES.
to whether drawheads on defendant's cars, or foreign cars in its use, when in good condition, sometimes showed as much disparity in the heights of the drawheadsas six or seven inches. In order to make more complete the above summary of the material issues of fact, we will add what the plaintiff himself says, substantially, in relation to the proximate, cause of his injury. He says the drawhead of the car 04 was 4! inches, though he did not measure or see it measured, lower than the other car to which he was coupling it, and that that difference was caused by the sagging of the defective carrier iron; and in further locating the proxi. mate cause he said that, after he had made the coupling, "my hand was caught from the fact that when I started to take my hand out of the way, the lower part of the drawhead struck it, and jammed it against the link." The allegations of his petition show that:
"Sald drawhead, as the consequence of the defective carrier iron, had fallen four or :Il.ve Inches lower than it should have been, and was therefore, by reason of its being four or :Il.ve inches lower, rendered more difficult and dangerous to couple. li'rom the causes aforesaid plaintiff, in attempting to effect said coupling as aforesaid, had his hand caught by said lowered and de· fective drawhead, and pressed against the drawhead on the car to whicb he was trying to couple the car with said defective drawhead, and his hand was crushed as aforesaid."
The refused charges which we will consider relate to the parts of the court's charge found in paragraphs 2, 3, and 5, below:
Paragraph 2: "A railroad company is bound to use ordinary care to furnish safe machinery and appliances for the use of its employlis in operating its road, and if ordinary and reasonable care was not used by the company, it would be responsible for the injuries to its servants caused by such neg· lect." Paragraph 3: "An employer of labor, in connection with machinery, is not bound to Insure the absolute safety of the appliances which he provides for the use of his employlis, nor is he bound to supply for their use the best and safest or newest of such appliances, but he is bound to use all reasonable care and prudence for the safety of those in his service by providing them with machinery reasonably safe and suitable for use; and the like care devolves upon the master to keep it in repair. By 'ordinary care' is meant such as an ordinarily prudent man would use under similar circum. stances."
For the purpose of considering, later on, another assignment of error, we recite here the fifth paragraph of the court's charge, as follow<£!:
Paragraph 5: "An employG assumes the risks naturally incident to his employment, and if the defects in the said drawhead were open and known to plaintiff, he cannot recover. If the evidence convinces you that plaintiff had previously handled that car as brakeman, and knew the condition of its drawhead, he cannot recover, unless facts and circumstances had intervened between his former use of sald drawhead and the time of his injury that led him to believe said car had been repaired in the matter of the drawheads."
In urging objections to the third paragraph, the counsel for plaintiff in error does not deny the correctness of the propositions of law announced therein; but he very earnestly contends that the law in such propositions is too abstractly and briefly stated by the learned judge, that the propositions are simply bare statements of abstract
of law, in failing,aatheydo, tobring<the realil!fSuel!J the attention of the jury.they are misleading·. Said counsel, fearing that the jury might not be sufficiently advised by the judge's. «$arge as to the rules of law applicable to the material facts, and that they might have the 1)enefit of a move liberal amplificationof the court's abstrllct propositions of law, disclosed in said, paragraph, unsuccessfully requested the court to charge as follows:
(5) "The jury are Instructed that defendant was not bound to furnish platnWf II,bsolutely safe machinery, but owed him. In that respect. the duty of. furnisblnghim. suchlls would reasonal;>ly bl! suitable for the: purposes . for whlcll.lt was IntenCled,. and to exercise ordinary cltre to see that same was kept In a like condition. In 'determinlng thl!j question. you can look to all the testimony, and take Into consideration the fact 'as to whether or not It was a. J1SIlRl thing for defendant to have cars on Its line with different heights of drawhars; and you may also take into consideration as to whether or not those engaged In the transportation and inspection of cars. such defects: In the exercise of reasona:ble .care on their part, as may be shown by the evidence In this case as sucb that would likely occur in. the business of railroading, which may be're;lSpnably anticipated by. those . ' the business of handling the cars...·. . engaged In .'". . ), .
otIaw, . and if the matters therein contained, or the [email protected]
If therefused charges recite correct
TEXAS & P. RY. CO.' V.RHODES.
hension, general principles and ordinary rules ,of law, applicable only in a general way to the proof in the case, may sometimes fail to come up to the full measure of his usefulness, in co-operating with the jury, so that they may not err in applying his instructions to all the proof upon or out of which a verdict for plaintiff or defendant may be resolved. These suggestions as to the obligation of the trial judge are emphasized by other well-known rules laid down in the reported decisions of the federal courts. In the case of Railway Co. v. Bryant, 6 C. C. A. 138, 56 Fed. 803, this court, in dealing with the trial court's refusal to give a special charge, in a personal injury suit like this, and in giving emphasis to the rules to which we have briefly referred, said, in concluding its on the subject-matter of such rules:
"Therefore it is the duty of ,trial courts to bring these real issues clearly to the attention of the jury; and especially in those personal injury cases, where the liability rests, often,J;lot on any Issue as to the fact or extent of the injury, but on the proof of negligence on the part of the' party sued, care should be taken to bring to a focus, on the real issue in the case, the light of instructions applicable to all the material evidence on that Issue."
The force of the counsel's exception to the court's refusal to give the special instructions recited above, and the applicability of the rules of law herein suggested, will be more clearly recognized when we consider that it was incumbent on plaintiff to prove, as he has substantially alleged, that .the defect in the carrier iron was the llole cause of the disparity in the heights of the drawheads, and that such defect made that coupling more difficult and dangerous than it would have been if the drawheads, beingin good condition, had been about four inches apart, and that the proximate cause of his injury inhered in and sprung out of the said defect,-that is, that his injury is., traceable, without an intervening cause, to that defect,-and that there was negligence on the part of defendant company in allowing the defect to occur, and in not more readily and diligently repairing it. We suggest that such was the burden of proof imposed, under the pleadings, on the plaintiff, because, unless his failure t9 extricate his hand quickly enough to avoid the injury was solely attributable to the iron, and not because of the disparity between the heights of the drawheads, he could not recover. Now, it may be that a just consideration of the evidence wQuld show that the proximate cause of the plaintiff's injury inhered in and sprang out of the defect caused by the sagging carrier iron; but for all the jury could have learned from the conflicting evidence, it may be that if Rhodes had then been engaged in coupling twp drawheads, in prime condition but of unequal heights, and had done just the acts which he said he did, and exercised only the same. skill in trying to extricate his hand, that his hand would have, as readily, been crushed; that is, the degree of skill, and the acts which he exercised and did in making that coupling, would not have made him more successful in extricating his hand if the drawheads, being in good condition, had been of such unequal heights as he sometimes found in the line of his daily work. Plaintiff in error assigns further error of the court in refusing the following instruction:
(1$) ''The jury are Instructed that, although the drawhead ot the water car 04:,bad been allowed to become lower than It should have been, yet it plaintift knew ot this fact, or should have known of It by the exercise of reasonablecare on his part, then he cannot recover."
We think the refused charge recites a correct proposition of law which was not covered in the main charge; that the matter therein contained, or the substance thereof, not having been covered in the paragraph 5, which we have cited with paragraphs 2 and 3 of the judge's charge, there was error in not giving the charge. In paragraph 5 the idea was oonveyed to the jury that if Rhodes actually knew of the condition of the drawhead on water car 04 he cannot reoover. It is true that Rhodes said he did not know that he was coupling water car 04 when he was hurt; but there were denials of that statement in the evidence and circumstances·. Bearing in mind that Rhodes could in no event recover if he failed to free himself from the charge of contributory negligence; that the law, in relation to such negligence, will charge an employ6, like Rhodes, with knowledge of not only such things as he may actually have knowledge of, but it will impute knowledge to him of such things, in and about the cars that he was daily and hourly handling, as he could' know, or have knowledge of, if he exercised reasonable care in the use or handling of the machinery furnished by the master, and that his failure to know the defects in such things, if established, wonld not, of or in itself, free him from such negligence; and bearing in mind, further, that, thongh he swore he did know of the defective drawhead, and did not know he was coupling car 04- when he was hurt, there were evidential conditions and circumstances, shown to have attended him daily, if not hourly, in the line of bis employment, which might have put at issue the truth of his statement, and might have led the jury to believe, even though Rhodes may not have actually known he was coupling car 04, or may not have actually known whether or not the defective drawhead of said car had been repaired, yet, under all the circumstances, he, with or in the exercise of reasonable care, should have known of such material things. Considering, too, that paragraph 5 seems to convey the idea that if Rhodes did not actually know which particular car he was coupling, and did not know actually whether or not the defective drawhead in car 04 had been repaired, he would be free from contributory negligence; and recurring to what we have said as to the duties of the trial judge, and as to the conflicting evidence on material issues in this case,-we conclude that the trial judge, in aid of the common purpose of the court and jury, should have given the two charges which were refused over the objections of the plaintiff in error. The special instructions herein cited should have been given to the jury. Therefore, judgment below is reversed, with costs, and the cause remanded, with instructions to grant a new trial.
BICE t1. ADLEB-GOLD1lU.N COMMISSION CO.
nICE et aI. v. ADLER-GOLDMAN COMMISSION 00. 1 (CircuIt Court of Appeals, EIghth CIrcuIt. No. 644. December 2, 1895.)
JUDGMENT-COLLATERAL ATTACK-JURISDICTIONAL AVERMENTS.
A judgment rendered In a federal court cannot be collaterally attacked because the jurIsdictional averment as to the cItizenship of plaIntllf was insufficIent. In the absence of a bankrupt or Insolvent law, a debtor may lawfully pay one creditor to the exclusion of the others, by consenting to a judgment In his favor; and the fact that the preference Is accomplished quickly or secretly, In order to prevent Interference, Is Immaterial.
PREFERENCE BY DEBTOR-VALIDITY.
INTERvENTION IN ATTACHMENT PROCEEDINGS-RIGHTS OF INTERVENER.
Sand. & H. DIg. § an, authorizIng any persons, before the sale of attached property, or before payment to the plaintilf of the proceeds thereof, to dispute the validity of the attachment, or state a claim to the property, does not allow one so intervening to contest the grounds of the attachment, whether they are confessed or denied by the defendant in the attachment. The decisions of the supreme court of the state construing and applyIng its attachment laws are rules of decisIon in the federal courts In like cases comIng from that state.
FOLLOWING STATE DECISION-ATTACHMENT LAWS.
In Error to the Circuit Court of the United States for the Eastern District of Arkansas.
The defendant in error, the Adler-Goldman COmmIssIon Company, on the 13th of November, 1894, broughi an action In the United States court for the Eastern district of Arkansas against J. Loewen on a promissory note tor $4,735.83. and caused an attachment to Issue in the action, which was levIed on Loewerrs property; and on the 11th day of December, 1894, judgment was rendered in the actIon, by default, for $5,126.28 and costs, and the attachment was sustained. On the 25th of January, 1895. the piaintilfs In error, RIce, Stlx & Co., filed In the United States cIrcuit court theIr petitIon of Intervention; stating, In SUbstance, that they had sued out a writ of attachment In a suit Instituted by them in the stale court agaInst the same J. Loewen, which had been levIed on the same stock of goods levied upon by the marshal at the suit of the defendant In error. The Interveners asked to have 'the attachment in favor of the defendant In error set asIde upon three (1) Tbat the United States cIrcuit court bad no jurIsdIction to render a judgment In tbe action brougbt agaInst Loewen by the defendant In error, because the plaintiff thereIn was a foreign corporation, and had not complied with the laws of Arkansas to enable It to dQ,. busI· ness In that state; (2) tbat the jurisdIctIonal averments In the complaInt In the action were not SUfficIent, either as to the citizenship of the partIes or the amount In controversy, to gIve the court jurllldlctIon; (3) that the at· tachment was sued out by agreement between the defendant In error and Loewen, and tbat the grounl!s 01 attachment set out In the affldavit upon whIch It was Issued were not true. A demurrer was sustaIned to the second and thIrd paragraphs ot the IntervenIng petltlon, and upon a trial the court found the Issue of fact on the first paragraph agaInst the plaIntiffs In error, and dismissed theIr petition, and thereupon they sued out thlawrlt of error.
Geo. H. Sanders, for plaintiffs in error. U. M. Rose, W. E. Hemingway, and G. B. Rose, for defendant In error. . efore OALDWELL, SANBORN, and THAYER, Circuit Judge1l. B
denied FebrulU'7 8, 1896.