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Answer. We think he occupied the usual place for making the coupling. Q. 28. Could he not have taken such a position as would have enabled him to determine the speed of the car before he attempted to couple? A. To make the coupling he could not."

These answers were evasive and unsatisfactory. No one questioned or doubted the fact that the plaintiff, when he attempted to make the the coupling, "occupied the usual place for making the coupling," and that, "to make the coupling, he could not" have been at a point sufficiently distant from the track to have estimated accurately the rate of speed at which the car was moving; but the mooted question was not one of these, but was whether he could not have taken a position a short distance from the track, prior to his attempting to make the coupling, from which position he could have ascertained with a great degree of accuracy the speed of the car, and have thereby known whether it was prudent or safe for him to attempt to make the coupling or not. If it was prudent, he could have then made the coupling; if not prudent, he should not have attempted to do so. He was master of the situation. The car was about 200 feet distant when it was first detached from the engine, and it would seem that he had plenty of time for all this. Upon the return of these questions and answers to the court, the defendant asked the court to require the jury to answer the questions properly, but the court refused, and in this we think the court committed error. From the evidence, the instructions, and the findings of the jury as made, we think we should assume that the plaintiff exercised proper care and diligence at the place where he attempted to make the coupling; but the question whether he exercised proper care and diligence in taking that place before ascertaining the speed of the approaching car is still an open, unascertained, and undecided question, and the court erred in refusing to require the jury to decide it. It was certainly material.

The only negligence charged against Ellis is that he applied too much power in moving the car. Now, there was no evidence tending to show that Ellis had any knowledge that the car was to be detached from the engine until the time when the signal was given for such detachment; there was no evidence tending to show that Ellis had any knowledge as to the purpose for which the car was to be detached, or as to the distance which it was expected or intended the car should go; and there was no evidence tending to show that Ellis was moving the engine and car more rapidly than he was permitted to do in that yard, or more rapidly than safety would ordinarily permit, and no evidence that he moved the car any faster after it was detached than before. Indeed, the evidence tends to show the reverse. It tends to show that as soon as the car was detached from the engine, the car and engine separated, the car moving faster than the engine, and the engine stopping within 10 or 15 feet. Could Ellis be negligent under such circumstances? But before answering this question many other matters must be taken into consideration.

It would seem that, in order that Ellis should be considered as negligent, he should have known that the car was to be detached, and when and where it was to be detached, and for what purpose it was to be detached, and the distance it was expected that the car would move after being detached, also the nature of the track,—its smoothness or roughness, and the grade,-and the condition of the car,whether it moved easily or not, and whether it had recently been oiled or not,—and, knowing all these things, he should then have been capable of estimating the amount of steam necessary to be applied to the engine in order to drive the car to the point of its destination at a speed ranging only from two to three miles an hour. Now, with Ellis' want of knowledge as to whether the car was to be detached at all or not, as to when or where it was to be detached, for what purpose it was to be detached, the distance it was to go, etc., was he bound to make such close calculations with regard to the power to be applied to his engine as to give the car a particular rate of speed when it should be detached, when the plaintiff, who knew that the car was to be detached, when and where it was to be detached, for what purpose it was to be detached, and where it was to go, is virtually relieved by the decision of the court below from the necessity of having any knowledge of the speed with which the car was actually moving after it was detached? It might have been profitable for the jury to have compared the negligence of Ellis with that of the plaintiff; but the court, at the request of the defendant, instructed the jury that they must not do so. This instruction would indicate that the defendant, or rather the defendant's counel, believed that the negligence of Ellis was greater than that of Peavey, and possibly it was. But still the question remains: How could Ellis calculate the amount of steam that should be applied to send any car, on any track, for an unknown distance, at a particular rate of speed, when the plaintiff could not estimate the rate of speed at which this particular car was actually moving? In this particular case the grade was descending, the track smooth, and the car was an ordinary flat car, and all these things the plaintiff and Ellis and the others were required to know; but whether the car would move easily or not, whether it had recently been oiled or not, whether it was to be detached or not, and if so for what purpose it was to be detached, and when and where, and the distance it was expected to go after being detached, Ellis was, so far as the record shows, entirely ignorant, while of some of these things at least, and possibly all, the plaintiff had full knowledge. Of course all could see the standing car about 200 feet distant from where the other car was detached; but Ellis did not know that the moving car was to go only to the standing car, or that the two were to be coupled together. There seems to be a defect in the evidence, and also in some of the findings, as to the supposed negligence of Ellis; and yet it devolved upon the plaintiff to prove such negligence. We have already made sufficient state

ments with regard to the defects in the evidence; and, as tending to show some of the defects in the findings upon this subject, we would give the following special findings of the jury, to-wit:

"Question 331. Were not the car and locomotive in motion going towards Peavey when he gave the signal to Myers to cut the car off? Answer. We don't know. Q. 34. Did Ellis know that the car was to be cut off, and run alone towards Peavey until Peavey gave the signal to cut off; and if he did, say how he was informed of it and by whom? A. We don't know." "Q.29. What rate of speed was the engine moving at the time the car was cut off from it? A. We don't know." "Q. 22. Did Ellis know that plaintiff was ignorant of the speed of the car? A. We don't know.". "Q. 16. Was the inovement of the locomotive arrested as soon as it was usual or practicable to do it, after he received the signal? A. We don't know."

As before stated, there was no evidence introduced tending to show that any additional impetus or motion was given to the car by the engine after the car was detached from the engine. Indeed, the evidence tends to show the reverse. Under the instructions of the court the answers to these questions are in favor of the defendant, although it is possible the jury intended them the other way. The court instructed the jury with regard to the special findings as follows:

"The jury will answer the questions in the affirmative upon a preponderance of the evidence bearing on that point. If they find the testimony evenly balanced, or not supported by a preponderance of the evidence, they will answer in the negative; and if not sufficient evidence in favor or against any question to warrant an intelligent answer, they will say don't know.""

By virtue of the foregoing instruction and answers, it must be assumed that the engine and car were in motion, going towards the plaintiff, when he gave the signal for the car to be detached; that Ellis did not know, prior to that time, that the car was to be detached; that the engine and car, prior to that time, were not moving at a dangerous rate of speed; that Ellis did not know that the plaintiff was ignorant of the rate of speed at which the car and engine were moving; and that the engine was stopped in its movement as soon as it was practicable to stop it after the detachment; for the jury in effect found that there was no evidence to the contrary, and the burden of introducing such evidence, if any could be obtained, rested upon the plaintiff, and not upon the defendant; that is, the burden of showing that Ellis was negligent rested upon the plaintiff, and not upon the defendant.

The foregoing instruction, however, was itself erroneous. The trial court should not have given it; for where such an instruction is given, the jury will generally answer many of the questions by simply saying they "don't know," when in fact they might and ought to give, under the evidence, intelligent answers to the questions. In the present case, out of 36 special questions presented to the jury they answered nine of them by simply saying "don't know." They also answered parts of two others in the same manner; and also answered two others in substantially the same manner,-virtually answering

13 questions by simply saying that they did not know, or that there was no evidence upon the subject. Of course, it is proper in some instances, where the jury have made an honest effort to answer the questions properly and have honestly failed, for the court to relieve them from giving proper answers and to permit them to give answers by merely saying they "don't know." But the court should not permit the jury to make such answers until the court is satisfied that the jury have faithfully endeavored to answer the questions properly and failed to do so, and until after the court is satisfied that the jury cannot answer the questions in any other manner.

We now come to the last point made in the case; and that is that the verdict is so excessive as to show passion or prejudice on the part of the jury. This point is undoubtedly well taken. The injury and loss to the plaintiff are merely the loss of a thumb and forefinger, the consequent suffering and inconvenience from such loss, a nominal sum of money paid for medicines, and some loss of time while the wound was being cured. It does not appear that the plaintiff paid anything for surgical or medical attendance, or for nursing, and he cannot tell what he paid for medicines, whether one dollar or five, or some other small sum. The defendant's surgeon attended him at the defendant's expense. Now, a verdict for $8,000 for such an injury certainly shows passion or prejudice. The plaintiff, however, remitted $1,500 thereof, and took a judgment for $6,500; but even this amount is grossly excessive, and a judgment for such an amount for such an injury should not be allowed to stand. Kansas Pac. R. Co. v. Peavey, 29 Kan. 170; S. C. 11 Amer. & Eng. R. Cas. 260; S. C. 44 Amer. Rep. 630. If the contest had been between two persons in ordinary circumstances, the jury in all probability would not have allowed $1,000, possibly not $500, even if they had allowed anything.

There are some other questions presented in this case, and the court committed a few other errors; but as we have already discussed the principal questions involved and the principal errors committed, we do not deem it necessary to add anything further to this opinion, except that we might say that some of the errors committed are so trivial that they would not require or even authorize a reversal of the judgment below. Indeed, some of the errors which we have commented on probably come within this category of trivial errors. But, taking all the errors together, including the excessive judgment, and they present such a strong case of error that no proper course is left but to reverse the judgment. The judgment of the court below will be reversed, and cause remanded for a new trial.

(All the justices concurring.)


Master and Servant-Risks of Employment-Incompetent and Negligent Fellow and Superior Servants.


(1) Ordinary Risks.

(2) Unusual Risks.

(1) Who are Fellow-Servants.

1. RISKS OF EMPLOYMENT. When a person enters into the service of another he assumes all the ordinary risks incident to the employment, Woodworth v. St. Paul, M. & M. Ry. Co., 18 Fed. Rep. 282; Mentzer v. Armour, Id. 373; Sunney v. Holt, 15 Fed. Rep. 880; Howland v. Milwaukee, L. S. & W. Ry. Co., 11 N. W. Rep. 529; Herbert v. Northern Pac. R. Co., 13 N. W. Rep. 349; Piquegno v. Chicago & G. T. R. Co., 17 N. W. Rep. 232; Richards v. Rough, 18 N. W. Rep. 785; Madden v. Minneapolis & St. L. Ry. Co., 20 N. W. Rep. 317; Hannibal & St. J. R. Co. v. Fox, 3 Pac. Rep. 320; Leary v. Boston & A. R. Co., 2 N. E. Rep. 115; and the employer agrees, by implication of law, not to subject him to extraordinary or unusual peril, and that he will furnish and maintain in repair suitable machinery, reasonably safe, with which to perform this work, Gravelle v. Minneapolis & St. L. Ry. Co., 10 Fed. Rep. 711; Armour v. Hahn, 4 Sup. Ct. Rep. 433; Thompson v. Drymala, 1 N. W. Rep. 255; Thompson v. Hermann, 3 N. W. Rep. 579; Braun v. Chicago, R. I. & Pac. R. Co., 6 N. W. Rep. 5; Herbert v. Northern_Pac. R. Co., 13 N. W. Rep. 349; Moran v. Harris, 19 N. W. Rep. 278; Solomon R. Co. v. Jones, 2 Pac. Rep. 657; McGee v. Boston Cordage Co., 1 N. E. Rep. 745; Bowers v. Union Pac. R. Co., 7 Pac. Rep. 251; Cunningham v. Union Pac. Ry. Co., Id. 795; Bean v. Oceanic Steam Nav. Co., 24 Fed. Rep. 124; but he does not covenant to furnish machinery and appliances that are safe beyond a contingency, nor that they are as safe as those of others using the same kind. Richards v. Rough, 18 N. W. Rep. 785; Sjogren v. Hall, Id. 812; Batterson v. Chicago & G. T. R. Co., Id. 584. The employe takes upon himself those risks, and only those, that are usually incident to the employment engaged in, and in absence of statute the negligence of a fellow-servant is a risk assumed by the employe as a risk of the business or employment. Thompson v. Chicago, M. & St. P. Ry. Co., 14 Fed. Rep. 564; Totten v. Pennsylvania R. Co., 11 Fed. Rep. 564. It has been held that a master is liable in damages for taking an inexperienced employe into danger without warning, Parkhurst v. Johnson, 15 N. W. Rep. 107, but infancy or ignorance of the employe does not, of itself, give him cause of action against his employer for injury resulting from setting him at dangerous work, if it appears that the employe was of average intelligence, and that his duties were explained to him when he entered upon the employment. McGinnis v. Canada Southern Bridge Co., 13 N. W. Rep. 819. Yet where an employe is put at other and more dangerous employment than he undertook to do, and is injured, the master will be liable. Jones v. Lake Shore & M. S. Ry. Co., 14 N. W. Rep. 551. Where a servant, knowing the hazard of the employment as the business is conducted, is injured while engaged therein, he cannot recover merely on the ground that there was a safer way of conducting the business, the adoption of which would have prevented the injury. Naylor v. Chicago & N. W. Ry. Co., 11 N. W. Rep. 24; Lopez v. Central Arizona Min. Co., 2 Pac. Rep. 748; Stafford v. Chicago, B. & Q. R. Co., 2 N. E. Rep.


A railroad employe does not necessarily assume the risks incident to the use of unsafe machinery furnished him because he knows its character and condition; but it is necessary that he understood, or by exercise of common observation ought to have understood, the risks to which he was exposed by its use. Russell v. Minneapolis & St. L. Ry. Co., 20 N. W. Rep. 147; Cook v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 311. And in a recent case it is said that while the servant assumes the ordinary risks of his employment, and, as a general rule, such ordinary risks as he may knowingly and voluntarily see fit to encounter, he does not stand upon the same footing with the master as respects the matter of care in inspecting and investigating the risks to which he may be exposed. He has a right to presume that the master will do his duty in this respect, so that, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders without being chargeable with contributory negligence or the assumption of the risk of so doing, provided he does not rashly and deliberately expose himself to unnecessary and unreasonable risks which he knows and appreciates. Cook v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 311.

(1) Ordinary Risks. It may be said to be well settled that one who voluntarily enters the service of another takes upon himself the natural and ordinary risks incident to such employment, Smith v. Railway Co., 69 Mo. 38; Porter v. Railway Co., 60 Mo. 160; Coombs v. Cordage Co., 102 Mass. 572; Perry v. Marsh, 25 Ala. 659; Gibson v. Erie Ry. Co., 63 N. Y. 449; Toledo, etc., Ry. Co. v. Black, 88 Ill. 112; Gibson v. Pacific R. Co., 46 Mo. 163; Wonder v. Baltimore, etc., R. Co., 32 Md. 411; Strahlendorf v. Rosenthal, 30 Wis. 674; as well as those growing out of patent or known defects. De Forest v. Jewett, 23 Hun, 490. In the case of Blake v. Railroad Co., 10 R porter, 426, it was held by the supreme court of Maine that the servant undertakes or contracts against all the

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