Dufour v. Central Pacific Railroad

Seaels, C. Action by plaintiff as the administratrix of her husband’s estate to recover damages from defendant, a corporation, for the death of her husband through the alleged negligence of its employees. Verdict for plaintiff. Defendant appeals from final judgment and from an order denying a motion for a new trial.

Plaintiff’s decedent was employed by the Friend and Terry Lumber Company to load lumber upon a car placed by defendant on a side track to receive its load. Decedent and another person were on this car loading lumber.

Before the accident happened all the load of lumber had been placed on the car, but it had not been leveled off and secured in place so as to be fit for shipment.

Decedent and his assistant were standing on the projecting ends, of the longer timbers at opposite ends of the car levelingafftlm [321]load and preparing to fasten the same in place, when the defendant’s employees, without giving any notice, ran up with a locomotive engine, coupled on to the train in which the lumber car was standing, and commenced moving in a southerly direction, and had moved several hundred feet and acquired a speed of five or six miles an hour when two heavy jerks of the cars occurred, the latter of which threw decedent from the ends of the lumber upon which he was standing between the cars where he was killed.' The time consumed in passing from the starting point to where the accident occurred was from a minute to a minute and a half.

The defense of contributory negligence is set up, and appellant makes the point that the evidence was insufficient to justify the verdict.

The position taken is that conceding the negligence of defendant’s servants in starting the train without notice whilst decedent was at work on the lumber, still the evidence shows that no injury was done him by this negligent start; that the shocks which afterward occurred, and by which he was thrown from the train were such as might reasonably be expected in a moving freight train, and that decedent ought to, and could by the exercise of common prudence have reached a safe position on the car. John J. Dufour, a brother of decedent, who was working with him on the car, and who was the principal witness for plaintiff, after describing the manner in which they were engaged says: “ There were about seven thousand or eight thousand feet of lumber on the car, which made the top of the lumber about six feet from the platform of the car and about ten feet from the ground. My brother was standing on the north end of the car, and I on the south end. We were standing on the ends of the lumber that projected at such a height that the top of the lumber was about even with our hips.