Page:Federal Reporter, 1st Series, Volume 9.djvu/354

 I �/ ���o'nEIL V. ST. LOUIS, IRON MOUNTAIN & BOUIHSBN BY. 00. 389 �ordinary care, he would net encounter accidents of the nature described to you. The case, then, may he naiTowed down to this: the plaintiff is entitled to recover, if, exercising ordinary care and diligence in the nature of the em- ployaient in which he was engaged, he, through the unreasonably inadequate and unsafe character of the car mentioned, incurred this accident. �If, through this neglect of the defendant corapany in f urnishing sueh inad- equately safe contrlvancea, without any negligence on his part, he incurred this danger, he is entitled to recover, and the ineasure of his compensation will be such as in your judgment he ought to receive in consequence of tho injury, takinginto consideration the nature and extentthereof, where thereare no other special damages alleged in the case. On the other hand, if the damage was caused simply by his own negligence or failure to exercise ordinary care in the employraent, the nature of which bas been described, he cannot recover. If I have made myself understood, this company had the right to haul over it» road cars not belonging to it — foreign cars, as they are called. These cars might differ in construction, and might difEer in the degree of danger attendingtheir handling or management; yet, if the accident occurs from their being not rea- sonably safe or adequate, under any circumstances, for the business for which they are employed, and the accident occurs without the negligence of the em- ploye, the company must respond thereto. If, on the other hand, the employe, through his own negligence, meets with an accident growing out of his handling or attempting to handle cars that are reasonably and adequately safe, then: the accident is at his own cost, for which there would be no redress. Determine then, gentlemen, — First, waa this car reasonably and adequately safe for the employes in the handling of the same. If not, did the plaintiff,^ through carelessness or negligence, contribute to the accident which he sus- tainedi If the car Was not adequately safe, and he was not negligent in per- forming the duty assigned him, he is entitied to recover. If, on the other hand, the car was adequately safe, and the accident occurred to him through his failure to exercise the proper degree of care in the work in which he was employed, he cannot recover. It is a compound question always, gentlemen, First, the neglect of the defendant ; seeondly, the eontributory neglect of the plaintiff. Of course, it devolves on the defendant, in cases of this char- acter, if the plaintiff bas made out that the car was not adequately safe in respect of the management thereof — I say, it is the duty of the defendant to- show that plairitifl's negligence contributed to the accident. �The jury brought in a verdict for the plaintiff. The defendant made a motion for a new trial, and in arrest of judgment, upon which the f ollowing opinion was delivered : �T. 8. Rudd and A. R. Taylor, for plaintiff. �T]ioroughman e Pike, for defendant. �Trbat, D. J. The plaintiff sued the defendant for damages caused by the alleged negligence of the defendant. A trial was had, and verdict rendered for plaintiff. The defendant has iiled motions for new trial and in arrest. The plaintiff was an employe of the defend- ant, and the accident' occurred whilehe was engaged in the scope of ��� �