Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1911-02-17

urged behalf of the plaintiff that he and the engineer
not fellow servants but that the latter his SUPERIOR
occupying the position of principal In the view take
Of the it will not be necessary decide this question: AS
sumng however, but only for the purposes of this that
the engineer vice principal fail discover, upon
careful examination CT the record any evidence tending to
show that the plaintiff injury caused by the negligence OF
the defendant.
To maintain his action it incumbent the plaintiff to
show afrmatvely neglect of duty the part of the
defendant, which it owed to him while he employed in ITS
service and which the sole and proximae of the in
jury complained of The fact that the plaintiff in
ued while in the service of the defendant raises pre-
sumption that the injury the result of negligence the
part of the defendant "On the contrary all such actions in
the absence Of definite proof of negligence which directly
naturally results in injury to the employee the accident IS
regarded of the hazards of the employment of which
the takes the risk and for which there can be
covey. Mensch Pa r. r. Co., $50 Pa. St 59S G0G; Cyc
$780, 644 abatt Master and Servant SS3, POL 2G3 265
1t being the established rule that when the service
of another he the usual and ordinary risks incident to
the employment and the burden being the plaintiff to prove
armatye the alleged negligence of the defendants and there
being absence of such proof it follows, therefore, that the
injury complained of be held have been the usual
and ordinary risks incident TO tie employment which the plain
tiff assumed when he entered the service of the defendant and
for which there can be recovery
The plaintiff at the time of the accident about twenty
years of age and in view off his prior experience in and
about machine shops and with engines and cars though limited,
it be assumed that when hesnered upon the duties
brakeman, he knew the hazards attending his vocation Thus
viewing the apparent that it the duty of the court
at the close of the plaintiffs evidence takehe from the
jury and direct a verdict for the defendant.
Referring the plaintiffs testimony, quoted above, it will
be observed that when the engine coe Kekaa they
stopped couple up cars when the plaintiff says 81
couple the and then he told go in front and
got close to the switch jump down and and
fix the switch told him Alright; you slow with the
engine Don't too fast When got ahead and gave
him the signal, he blew two whistles and ahead" The
plaintiffs contention that this direction under the ccm
constituted negligence and that he the plaintiff had
alternative but to obey and jump 1t is clearly apparent that
there element of negligence in the direction of the eng
When he said ego in front and get close
to the switch jump down and and fix the SWITCH it is
clear that he could have only intended to the ears only
slow enough permit the plaintiff jump off with safety but
also slow enough permit him ahead and have sufficient
time stop and fix the switch before TIE would reach the
switch No other reasonable construction be placed upon
the language used and the plaintiff have understood it.
1t will also be observed that the engine and in
motion at the time this command given; and Of
THE plaintiff, unlike the plaintiff in Patton W. N. f. r. Co.,
S. f. SG3 cited by the defendant required ''o Jump
from rapidly moving train of cars was expected
required to act suddenly and "wtout hesitaon He gave
the signal start and told the engineer come Slow" and
when he tells that the train going about eight miles
hour when he jumped could the jury have said, and
say the absence of evidence to the contrary, that
the engineer did slow 2? We think not. The plain
tiff practically master of the stuaton he left free
exercise his judgment to the time and place and when
and where Jump There is evidence that the speed
high for safe jumping by brakcmen, that it
higher than is customary when ordinarily careful and prudent
brakemen Jump The plaintiffs and his testimony
show that his Judgment the time that the 90
ing slowly enough not only permit him with safety agt
but also slowly enough give him ample time reach the
switch and ad just it before tie would reach him.
The plaintiff also fails to point any defect in the cars
9ine tracks, appliances essential to reasonably safe and
proper operation of them that they in any way inn
properly uskilfuy operated that there suf
heent number OF employees to carry the work with
able and ordinary safety that the engineer any way fail
ed to properly skfuly perform his duty If the defendant
any OF these respects, otherwise remss any of its
duties which owed to the plaintiff the failure of which
suited in the injury complained of while he engaged in the
service OF the defendant it for him show this by
peent evidence Having failed to adduce such evidence,
must assume that the defendant performed its duty. The
plaintiff undertook to trace the injury the negligence of the
defendant and since he has failed to show such negligence
winch was the sole and poxmae of his injury he
recover.
The injury however unfortunate it for the plaintiff,
be considered an accident only for which there no relief
There nothing for the jury to consider The order direct
ing verdict for the defendant was correct
The Judgment of the circuit court is affirmed
t. A. Dars (thinSon d Quarles the bref) for plaintiff
O. g. Bding (1hompSon, Clemens d Wilder on the bref)
for defendant.