CHICAGO JUNCTION RY. CO. v. KING, 169 F. 372

BAKER, Circuit Judge (after stating the facts as above). In Wabash R. Co. v. U. S. and Elgin, etc., R. Co. v. U. S. (herewith decided) 168 Fed. 1, we have expressed our judgment that the safety appliance acts are constitutional Was the car movement in question unlawful? From the acts of plaintiff and of the car repairer, Tony, in bringing new parts to the place- where the defective car stood, the jury were justified in finding that it was reasonably practicable to make the repairs without moving the car.

Corrigan decided in favor of pushing the car to-the place of supplies because he thought that there the repairs could more conveniently be made. The movement that was intended and under way when the plaintiff was caught was of a defective interstate car in connection with other cars on an interstate highway, and so was within the letter of the original act of 1893 as well as of the interpretative amendment of 1903. Now, if the exercise of reasonable care in maintaining the statutory standard of equipment will not exempt a car movement as being beyond the spirit, and therefore the reach, of the statute (St.

Louis, Iron Mountain, etc., R. Co. v. Taylor,, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; Chicago, Milwaukee & St. Paul R. Co. v. U. S. [C. C. A.] 165 Fed. 423 [decided Nov. 27, 1908] ; U. S. v. Atchison, Topeka & Santa Fé R. Co. [C. C. A.] 163 Fed. 517; U. S. v. Denver & Rio Grande R. Co. [C. C. A.] 163 Fed. 519), much less will mere convenience be accepted as an excuse. Whether or not “overwhelming necessity” (Bishop on Stat. Crimes[3d Ed.] § 132; 1 Wharton’s Cr. L. § 95) would be available as a ground of exemption is a question not properly arising on this record.

There was evidence to support a finding that it was within the scope of plaintiff’s duty to endeavor to repair the coupler so that the train might be put together and the crew proceed with their work of distributing the cars. According to this view, plaintiff’s act in substituting a new knuckle for the broken one in preparation for a coupling by impact was quite 'similar to Voelker’s (Chicago, M. & St. P. R. Co. v. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264), in adjusting a defective coupler so that it would couple automatically.

But we find nothing in the statute that limits the classes of persons to whom the carrier shall be responsible for damages that result directly and immediately from its illegal doings.

Section 8 provides that: “Any employé of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned.” The statute would be. honored only in its breach if the same facts that would defeat the employé under the common-law rule of assumed risk can be used to defeat him under the name of contributory negligence. Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681.

So plaintiff’s knowledge of the physical conditions cannot be charged against him in determining the quality of his conduct in going and being between the cars. And, since he could not be crushed between quiescent cars, his knowledge that at every instant of time there was the possibility of the cars being moved by the act or direction of other employés is likewise irrelevant.

The inquiry in our opinion is limited to whether other facts, independent of his knowledge of conditions and possibilities as aforesaid, establish plaintiff’s negligence so conclusively that it was error to submit the matter to the jury as a question of fact. Plaintiff observed the conductor and rear brakeman talking together at the opening between the cars. When he went to the place, he saw the broken knuckle.

The jury might well have inferred from this that plaintiff believed and had reason to believe that the conductor and rear brakeman knew of the defect, and therefore of the unlawfulness of moving the car in that condition as a matter of mere convenience. The engineer, on account of the curve in the track and the other cars, could not see the opening. But he saw plaintiff carry a knuckle back along his train. Plaintiff made certain signs to the engineer. Before judge and jury plaintiff reproduced the pantomime. This is not preserved in the bill of exceptions.

Defendant, having the burden here, therefore fails to show that there was no evidence from which the jury might warrantably have found that plaintiff believed and had reason to believe that the engineer knew that plaintiff was about to replace a broken knuckle somewhere in the train, and that it would be negligent, if not criminal, to move the train meanwhile. Under such circumstances, plaintiff would have the right to assume, until he had some notice to the contrary, that the conductor would not order the train to be moved and that the engineer would not start the locomotive.

Contention is made that plaintiff was negligent because he did not put out car repairers’ flags, for which a rule of the company provided. The purpose of such flags is to give notice that the car being repaired should not be moved. There was testimony that the rule was not applicable to situations like that disclosed in this case. Besides, if the posting of flags would not have further advised the engineer and conductor of their duty not to move the train, the jury presumably determined that the failure to post did not contribute to the injury.

We conclude that the evidence in its entirety justified the submission of the issues to the jury. . . Upon the carrier the statute lays the duty of seeing to it that no cars are hauled or used on its line that are not equipped according to the statutory requirements. This direct statutory duty cannot be evaded by assignment or otherwise. Therefore the act of the conductor who had charge of the train in deciding what should be done with the defective car was the act of defendant.

As to the negligence of the engineer, it is immaterial whether it be taken as that of defendant or of a fellow servant of plaintiff, for defendant cannot be exempted from liability for its own negligence by reason of the concurrence of another’s. Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, Monmouth, M. & M. Co. v. Erling, 148 Ill. 533, 36 N. E. 117, 39 Am. St. Rep. 187; So. Pac. Co. v. Allen (Tex. Civ. App.) 106 S. W. 443.

That the instructions respecting fellow servants and the nature of the duty imposed by the statute are deemed by us to be correct sufficiently appears from our consideration of the case upon the evidence. Defendant’s other requests need not be particularly noticed, for on comparison of them with the charge as given we find that they were substantially covered.

So far as we can determine from the printed page, no just criticism can be made of counsel’s offers to prove or of his arguments in support thereof; and we accept the action of the trial judge in denying a new trial as proof that there was no impropriety in the manner in which the offers were presented. The judgment is affirmed.