DENVER & R. G. R. CO. v. ARRIGHI, 141 F. 67

CARLAND, District Judge, after stating the facts as above, delivered the opinion of the court. This case was before this court on writ of error at a previous term of this court, and the judgment therein was reversed and a new trial ordered. Denver & R. G. R. Co. v. Arrighi, 129 Fed. 347, 63 C. C. A. 649. A new trial having been had, the case is again here on exception to the ruling of the trial court in refusing to direct a verdict for the railroad company.

At the prior hearing of the case this court was of the opinion that a verdict ought to have been directed for the railroad company on account of the contributory negligence of the defendant in error. If the facts shown by the present record are the same as on the former hearing, the decision then made is the law of the case, and the judgment now sought to be reviewed mus-t be reversed in accordance therewith. The evidence introduced at the first trial is not before us, except as it appears from the opinion of the court.

We are convinced from an examination of the opinion that the evidence introduced at the second trial could not have been the same as that introduced on the first for the following reasons: It is stated in the opinion that Arrighi was thoroughly acquainted with the link and pin coupling. This fact does not appear in the record in this case. It is stated in the .opinion that Arrighi adopted the most dangerous method of performing his duty. This fact does not appear’in the record now under consideration. From all that now appears in the record he adopted the only way practicable to make the coupling.

It is stated in the opinion that it did not appear that Arrighi ever made any effort to remove his hand. It appears in this record that he withdrew his hand as soon as possible. We therefore are of the opinion that we are not concluded by the judgment rendered when the case was first here. Two grounds are seriously urged by the counsel for plaintiff in error why the judgment below should be reversed: First. That the decision of this court on the first writ of error absolutely entitled the plaintiff in error to a directed verdict in its favor. Second.

That the evidence on the second trial affirmatively shows that Arrighi’s injuries resulted from his own contributory negligence and not proximately from the failure of the railroad company to equip its cars with automatic couplers as prescribed by Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]. The first point for the reasons heretofore stated we do not think well taken. The decision of the second point requires an examination of the evidence now before us. The act of negligence alleged against the company is not disputed, but it is urged that the evidence shows, that.

Arrighi’s want of ordinary care in making the coupling was the proximate cause of his injury and not the negligence of the railroad company. The position of counsel for the railroad company may be stated thus: The trial court and this court must take judicial notice that thousands of couplings were made daily with link and pin couplers when they were in use without injury to the person making the same.

Therefore, in a case like the one at bar, where the counsel for the company can point to no act of negligence on the part of Arrighi, the court must presume as matter of law that he was negligent because he was injured; there being nothing in the evidence to show that he was prevented in any manner from exercising ordinary care in making the coupling. If the court could take judicial notice that no man exercising ordinary care was ever injured in making couplings with link and pin, then there would be force in the position of counsel for the railroad company, but judicial notice is a two-edged sword in this case.

If, on the one hand, the court shall judicially take notice that thousands of couplings were daily made with link and pin when they were in use without injury to the person making the same, we may also take judicial notice that the use of link and pin couplers are so inherently dangerous to life and limb that the attention of Congress was repeatedly called to the fact by the President and legislation urged to remedy the evil. 9 Messages and Papers of the Presidents, p. 51. The act under which Arrighi brings this action was the answer Congress made to the demand made upon it.

We cannot presume that Congress legislated in order to protect careless and negligent employés alone; on the contrary, we must presume that Congress legislated because it was well known that employés in the exercise of ordinary care were continually being injured by the use of the link and pin coupler on account of its inherent danger. We conclude, therefore, that the mere fact that Arrighi was injured created no presumption against him, and that it was for the jury to say whether he exercised ordinary care in making the coupling. Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L.

Ed. 485; Northern Pacific v. Tynan, 119 Fed. 288, 56 C. C. A. 192; St. Louis I. M. & S. Ry. Co. v. Leftwich, 117 Fed. 228, 54 C. C. A. 1; Choctaw, O. & G. Ry. Co. v. Tennessee, 116 Fed. 23, 53 C. C. A. 497. Other errors assigned have been considered and found to be without merit. The judgment of the trial court must be affirmed, and it is so ordered.