Messrs. M. L. Bell and F. C. Dillard for plaintiff in error. [229 U.S. 317, 318] Mr. James C. McShane for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
Error to review a judgment of the circuit court of appeals, affirming a judgment of the circuit court for the northern district of Illinois for $ 8,000, in an action brought by Brown, defendant in error, against the railway company, for injuries received by him while working as a switchman in the railway company's yards at Chicago.
The action was brought in the state court, and removed on the petition of the railway company to the Federal court.
The first count of the declaration is based upon a violation of the safety appliance act, and it also contains allegations based upon the employers' liability act. The company was engaged and Brown was employed in interstate commerce. The fourth count charges negligence in failing to fill up the space between a running rail and a guard rail, in which space Brown's foot caught, where it was run over and his leg cut off.
The case was tried to a jury, resulting in a verdict for $8,000 for Brown upon two counts: (a) for a violation of the safety-appliance law, (b) common-law negligence in not blocking the switches. Judgment was entered upon the verdict, which was subsequently affirmed by the circuit court of appeals. 107 C. C. A. 300, 183 Fed. 80.
For the purpose of the contentions which are made here, the following facts must be accepted to be established, as summarized in the opinion of the circuit court of appeals:
These being the facts, the railway company asserts error in the trial court in not directing a verdict for the company, on the ground (1) that Brown, in leaning between the cars while they were in motion, was guilty of contributory negligence as a matter of law, and (2) in instructing the jury, in effect, that Brown was not chargeable with contributory negligence by the mere fact of going between the cars.
The contentions are resolvable into one, and may be said to be covered by the charge to the jury which the railway company attacks. The court, after stating that the first count of the declaration is based on the failure [229 U.S. 317, 320] of the company to equip the car with such a coupling device as that it could be operated without the switchman going between the ends of the car, said:
The counsel for the company at the outset expressed their realization that this case is one of those characterized in Chicago Junction R. Co. v. King, 222 U.S. 222 , 56 L. ed. 173, 32 Sup. Ct. Rep. 79, as of the class which it was the purpose of the judiciary act of 1891 [26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488] to submit to the final jurisdiction of the circuit court of appeals, and that this court under such circumstances will 'go no farther than to inquire whether plain error is made out.' Texas & P. R. Co. v. Howell, 224 U.S. 577 , 56 L. ed. 892, 32 Sup. Ct. Rep. 601. And the concession is made that in the Taylor Case, 210 U.S. 281 , 52 L. ed. 1061, 28 Sup. Ct. Rep. 616, and in Chicago, B. & Q. R. Co. v. United States, 220 U.S. 559 , 55 L. ed. 582, 31 Sup. Ct. Rep. 612, this court settled that the failure [229 U.S. 317, 321] of a coupler to work at any time sustains a charge of negligence in this respect, no matter how slight the pull on the coupling lever. And, further, 'The mere fact that the pin would not lift when plaintiff [Brown] endeavored to lift it makes a case of negligence under the first count. Contributory negligence is asserted because Brown knew, as it is contended, that he would have to pass over an unblocked guard rail; that, besides, he controlled the situation, it is contended, through signals to the engineer; and that he had two safe methods in which to make the cut of the cars, but voluntarily and for his own purpose chose the most dangerous method.
But all these facts and how far they should have affected his conduct were submitted to the jury. The evidence detailed the situation to them and whether the judgment of Brown was prudently formed and exercised.
The trial court and the circuit court of appeals, considering the evidence, confirmed the finding of the jury, expressed by its verdict. It would be going far to say that these concurring judgments are not such as could be reasonably formed, but such as must be pronounced to be without foundation as a matter of law.
The railway company starts its contentions with a concession of its own culpability in sending Brown to his duty to encounter defective appliances, and then seeks to relieve itself from liability by a charge against him of a careless judgment in its execution. But some judgment was necessary, and whether he should have selected one of the ways which counsel point out admits of debate. It is one thing to judge of a situation in cold abstraction; another thing to form a judgment on the spot. The Germanic (Oceanic Steam Nav. Co. v. Aitken), 196 U.S. 589, 595 , 596 S., 49 L. ed. 610, 613, 614, 25 Sup. Ct. Rep. 317. The movement of trains requires prompt action, and we cannot hold that, as a matter of law, Brown, in leaning forward to remove a pin which would have yielded to his effort, was guilty of negligence because he did not anticipate that his foot [229 U.S. 317, 322] might slip and be caught in an open frog rail of which he had or could be charged with knowledge. The case is within the ruling in the Texas & P. R. Co. v. Harvey, 228 U.S. 319 , 57 L. ed. --, 33 Sup. Ct. Rep. 518.