# Northern Pacific Company v. Everett

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United States Supreme Court
152 U.S. 107
Northern Pacific Company v. Everett
This was an action brought by William J. Everett, and prosecuted after his decease by Jane Everett, his administratrix, against the Northern Pacific Railroad Company to recover damages for personal injuries received while in its service. There was a verdict for plaintiff, and to review the judgment entered thereon, defendant brings the case here on writ of error.
Statement by Mr. Justice SHIRAS: William J. Everett brought an action in the district court of the sixth judicial circuit of the territory of Dakota on November 13, 1889, against the Northern Pacific Railroad Company, seeking to recover from it the sum of $30,000 as damages for injuries received by him in coupling cars owned and controlled by the company, alleging that he had received such injuries while in the employ of the company, as a yard switchman, in its yards at Jamestown, Dakota Territory, and while there engaged in the performance of his regular duties. The accident had happened, as he stated in his complaint, under the following circumstances: On July 6, 1889, he was at work in the yard, and was ordered by the yard foreman to couple together a car loaded with bridge timbers and a box car which was standing upon a side track. The car bearing the timbers was moved by a switch engine. This car was loaded in an unusual and dangerous manner, in that the timbers extended so far beyond each end of the car as to leave insufficient space for coupling with safety. The plaintiff had, however, no notice or knowledge of this fact. He attempted to carry out the orders which he had received, and in so doing his head was caught between the box car and the end of a heavy timber which projected over the end of the other car a distance of 22 inches. His injuries, thus received, were of a serious and permanent character, and consisted in the impairment, not only of his physical powers and senses, but also of his mental faculties.
The defendant admitted, in its answer, its ownership and control of the cars mentioned, but denied generally all the other averments of the complaint upon which were founded the plaintiff's alleged right to a recovery from it, and averred that the injuries, if any, received by the plaintiff were the result of his own negligence, and not of that of the defendant.
After the deposition, on behalf of the plaintiff, of a witness residing in the state of Washington had been taken, in pursuance of a commission to take testimony, issued out of the said territorial court, the portion of the territory in which the action was pending became a part of the state of North Dakota, and before further proceedings were had in the case it was removed into the circuit court of the United States for the district of North Dakota, in which court a trial was had before the court and a jury.
On the trial, after all the evidence for both parties had been heard, the defendant moved the court to instruct the jury to return a verdict for the defendant, for the reason that the evidence in the case would not warrant a verdict for the plaintiff. The court refused to so instruct the jury, and the defendant excepted to this ruling.
The court instructed the jury as follows:
'The fact that the plaintiff was injured in an effort to couple defendant's cars at the time and place mentioned has not, on the trial, been contested, but the defendant says the plaintiff's injury was the result of his own negligence or that his own negligence contributed to his injury; and if this answer of the defendant is true, it is a complete defense to this action.
'To entitle the plaintiff to a verdict he must satisfy you by a preponderance of the evidence of these two principal facts: First, that his injury was the result of the negligence of the railroad company; and, second, that his own neglect was not the occasion of the injury, and did not in any manner contribute to it. If the plaintiff's injury resulted from his own negligence, or if his own negligence contributed to his injury, he cannot recover.
'The particular act, which the plaintiff alleges constitutes the neglect on the part of the defendant which resulted in his injury is, that the flat car, which was in motion, and which he was ordered to couple to a box car standing on the track, was loaded with lumber, which projected twenty-two inches, or about that distance, over the end of the car where the coupling was to be made.
'The first question for you to determine is, was this an unusual or improper or negligent manner of loading lumber on a flat car? If you answer this question in the negative, you need inquire no further, but will return a verdict for the defendant.
'If you answer this question in the affirmative, you will then inquire whether such negligent loading of the lumber on the car was the cause of the plaintiff's injury, unmixed with any negligence on his part; and if you find that it was, your verdict will be for the plaintiff.
'The plaintiff was bound to exercise care and diligence in his employment of coupling cars. He was bound to use all his senses as actively and intelligently as any prudent man, having a knowledge of the hazardous character of his business, would have done under like circumstance. The business is a dangerous one, and imposed on him the duty of exercising great care and caution.
'If the plaintiff saw that the lumber projected over the end of the car before he attempted the coupling, or if he could have seen it if he had exercised great care and diligence, which, under the circumstances, it was incumbent upon him to exercise, then he can claim nothing on account of the injury resulting from such projecting lumber, and the injury must be attributed to his own negligence.
'If you find the lumber was negligently loaded-that is, in an unusual and dangerous manner-and that this fact was unknown to the plaintiff, then, when the plaintiff was ordered to couple the cars, he had a right to assume that the car was properly loaded, and act on that assumption; but if, before the peril was encountered, he discovered the projecting lumber, he should have desisted from any effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, if it was practicable for him to do so, and if by the exercise of proper diligence he might have discovered the projecting lumber before the accident, and in time to avoid it, he cannot recover.'
The defendant objected to the last paragraph of the foregoing instructions, and moved that it be withdrawn. The motion was denied, to which ruling of the court the defendant excepted. The case was then submitted to the jury, which rendered a verdict kfor the plaintiff, and awarded him damages in the sum of $7,000. Judgment in accordance with the verdict was entered on April 25, 1890. The defendant thereupon sued out a writ of error from this court.
James McNaught, A. H. Garland, and Heber J. May, for plaintiff in error.
S. L. Glaspell, for defendant in error.
Mr. Justice SHIRAS, (after stating the facts in the foregoing language,) delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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