SOUTHERN PAC. CO. v. JOHNSON, 64 F. 951

After stating the case, McKENNA, Circuit Judge, delivered the following opinion: The determination of tlie correctness of the ruling of tlie court refusing the motion of defendant (plaintiff in error here) requires a consideration of the testimony and its probative force. It is clear, conceding to the latter the highest degree to which, by tlie laws of evidence, it was entitled, if it failed to warrant a verdict for the plaintiff, it was the duty of the court to so have instructed the jury. Pleasants v. Fant, 22 Wall. 116; Southern Pac. Co. v. Hamilton, 4 C. C. A. 441, 54 Fed. 468.

Or the rule is sometimes stated as follows: “It Is only when the facts are undisputed, and are such that reasonable men can fairly draw but one conclusion from them, that the question of negligence is ever considered one of law for the court.” Railroad Co. v. Peterson, 12 U. S. App. 259, 5 C. C. A. 338, 55 Fed. 940; Kenna v. Railway Co., 101 Cal. 26, 35 Pac. 332; Railway Co. v. Cox, 145 U. S. 606, 12 Sup. Ct. 905. The allega tion of the complaint is: “

(9) That on the 14th day of August, 1892, said deceased, Horace M. Johnson, was a locomotive engineer employed by the defendant, Southern Pacific Railroad Company, on one of its engines, and was in the proper and necessary discharge of his duty as an engineer in running an engine, and on said day, through the willful carelessness and negligence of the said defendant, Southern Pacific Company, in failing and neglecting to keep its engine in repair, and without any carelessness, negligence, or fault of the said Horace M.

Johnson, and by reason of defects in the said engine;, of which defects defendant had notice, and which it was its duty to repair, and which defects it knowingly permitted to exist, the said Horace M. Johnson was thrown from the said engine, which he was at the time operating as engineer for the said defendant, and was mortally injured, of which mortal injury the said Horace M. Johnson afterwards, and on the 20th day of August. 1892, died, to the injury of plaintiff, and of the said Eliza M.

Johnson, Edith Maud Johnson, Gertrude Madge Johnson, Horace Glenn Johnson, and Rodney Haurenee Johnson, and to tlieir damage in tlie sum of twenty-five thousand dollars.” This allegation contains three propositions:

(1) That there were defects in the engine of which plaintiff in error had notice; (2) that it failed and neglected to repair them; (8) that, by reason of such defect, Johnson lost his life, without his fault or negligence. For the purposes of the case we shall assume that the evidence establishes the first two propositions, and we shall only consider what truth there is of the third, which involves the counter proposition, was he guilty of contributory .negligence? This court held in Railroad Co. v. Charless, 2 C. C.

A. 380, 51 Fed. 562, reviewing the prominent cases, that it was the duty of an employer to supply and maintain suitable instrumentalities for the performance by his employés of the work required of them, and that responsibility could not be be avoided by charging the neglect to other employés. But this duty does not exempt the employé from care and prudence. In Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, cited in Railroad Co. v. Charless, supra, the action was by a brakeman for injuries received. Contributory negligence was charged. The court, by Mr. Justice Field, said on page 655, 116 17.

S., and page 590, 6 Sup. Ct.: “As to the alleged negligence of the plaintiff, only a few words need be said. Of course, he was bound to exercise care to avoid injuries to himself.

If he had known, or might have known by ordinary attention, the condition of the brakes and cars when he mounted the cars, and thus exposed himself to danger, — in other words, if he did not use his senses as men generally use theirs to keep from harm, — he cannot complain of the injury which he suffered.” The rule of law is tersely and comprehensively stated by the learned judge who tried the case in the circuit court, as follows: “Personal negligence is the gist of the action.

It must therefore appear, to render the defendant liable, that it knew, or from the nature of the case ought to have -known, of the unfitness and unsafe condition of the engine and machinery, and that the employé did not know, or could not reasonably be held to have known, of the defect. Knowledge on the part of the defendant and ignorance on the part of deceased are of the essence of the action.” In Malone v. Hawley, 46 Cal. 413, the supreme court of California held that the liability of a defendant in a case like the one at bar depended upon three facts:

(1) That the instrument or machine was defective, and that the injury was caused by the defect; (2) that the defendant knew, or ought to have known, of the defect; and (3) that the plaintiff did not know, and had not equal means of knowledge. There are many other cases to the same effect, but which we need not review, nor the eases modifying the rule and holding the master liable, notwithstanding the servant knew of the defect, if he was induced to continue his work by a promise that the defect would be remedied. See 2 Thomp. Neg. pp. 985, 1008, et seq., where the cases are collected.

Assuming, as we have assumed, the existence of the defects and the companies knowledge of them; conceding that the deceased was justified in continuing in employment, —the question still remains, was he or was he not culpable, under the circumstances, in going out on the running board? The plaintiff in error is only liable if Johnson’s death was caused by the defects in the engine. It certainly was not caused by the defects in the injector alone.

They were, it is true, (he occasion of his going out on the running board; but going on the running board was not of itself hazardous to railroad men, and only became so, if at all, by the other defects in the engine. If these, however, made it so, it was surely apparent to Johnson, and he should not have risked it. lie was a skilled engineer, and, besides, had had months of experience with the engine, including the day preceding the accident. We know from the testimony of Driscoll, supra, that for at least 35 minutes before the accident (all of the time he was on the engine) she swayed and rocked.

Maybe she had done so for two hours before. And Freeman testified: “There was considerable jarring.” If this rendered the running board dangerous to any one, Johnson was guilty of reckless negligence to go out on it. There was no emergency which demanded the risk. The. train was running, the fireman said, 18 miles an hour. Its speed could easily have been slackened by an application of the air brakes. It could have been stopped as it was stopped by Driscoll immediately after the accident; and surely this inconvenience cannot be offset against and justify his assuming a, dangerous risk to his life.

Besides, the rules of the company enjoined him, in such situation, to take no risks. If the testimony shows that the risk was not obvious, it also shows that danger could have been avoided by care. Driscoll testified, in addition to what has been quoted supra: “It was not so rpugh that the engineer could hardly keep Ms seat, but I never was on an engine that jarred as muc.li as tills one. It would not jar a man so that he would be likely to slip off liis seat. If he was in the cab. he could not. I did not. say that jarring motion was sufficient to throw a mail off the running board. Q.

Why won’t yon say itV Is it because you <lo not know? I>o you mean this, — that the up and down motion or the jarring motion that constituted it a rougli-riding engine would be sufficient to throw a man off the running board if lie had his hand on the hand ra.il? A. 1 do not think it would if he had his hand on the hand rail. Q. Your experience is that engineers don't very often go out on the running board without keeping their hand on the hand rail? A. Yes, sir; as soon as they can get it on there. Q.

Then you do not conclude that the jarring you have described, if the engineer had his hand on the hand rail, would be sufficient to throw him off: if he was exercising any care? A. If lie had his hand on the hand rail, 1 do not think it would. I would not go out without having my hand on the rail.” And Charles Short, also a witness for the defendant in error, and who succeeded Johnson as engineer about, one hour after the accident, and ran the engine that day about 100 miles, testified: “Between Brown’s and Winnemucca the. right injector check stuck up frequently, — 8 or 10 times, perhaps.

To remedy it, the fireman went out over the running board, and 1 went out and tapped it down.” Neither the condition of the engine, its swaying or rocking or jarring, nor the fate of Johnson deterred him or Ms fireman (and the latter had seen the accident to Johnson) from going out over the running board to the injector valve, or prevented it from being safely done when care was used.

It was suggested on the argument by counsel for defendant in error that the engine may have suddenly lurched, breaking Johnson’s hold on the rail; but there is no evi-donee of this, and the condition of the road seems to preclude it. Describing the road, Freeman testified: “The liili slopes slightly towards Brown’s, the greater part, towards ‘Wads-worth. The locomotive was on the eastern slope going towards the Humbolt. There are severa! small icurves in ilie road at that place. Q. Where, with respect to these curves, did the accident take place? A. It was a straight track where the accident took place. Q.

Were there any sags? A. No, sir; the character of the grade is not very steep.” And Driscoll testified that: “The road at the place of the accident had some slight curves, hut I do not think there were any sags on the line where this accident occurred.” Neither witness testified to a sudden lurching of the engine. Whatever its motion, it seems to have been constant and uniform, and it appears impossible for a sudden lurching to have occurred, violent enough to wrench the hand of the deceased from the rail, and it not have been noticed by either Freeman or Driscoll.

If the injury could have been avoided by care, defendant is not liable. Railroad Co. v. Baugh, 149 U. S. 390, 13 Sup. Ct. 914, and cases cited. We think that the circuit comet should have instructed the jury as requested by the plaintiff in error, and its judgment, therefore, is reversed, and the cause remanded for a new trial.