Jeffrey v. K. & D. M. R. Co.

Adams, J.

1. railroads : evidence: rule of company, — The plaintiff was allowed to introduce in evidence, against the objection of the defendant, a rule of the company adopted for the government of its employes, prohibiting flying or running switches. ’ It is insisted that the rule was irrelevant and immaterial, because it appears from the evidence that no such switch was made or attempted.

The rule certainly was inadmissible, unless there was evidence tending to show that it was violated, and that the accident occurred by reason of the acts by which it was violated. The only object of introducing the rule must be to make that negligence, which but for the rule, and the violation of it, would not be negligence. Where an act is such as to constitute negligence of itself, independent of any express rule and its violation, there can be nothing gained by proof of the rule and its violation. Whether an act, which of itself falls short of constituting negligence, can be held to be negligence by reason merely of its being a violation of an express rule of the company we need not determine. It is sufficient to say that the evidence, we think, does not show, or tend to show, a violation of the rule in question. The rule prohibits running switches. But what was done was not done in making a running switch, nor with the view of making one. The caboose was, to be sure, to be placed upon the side track, but it was to *441 be stopped upon, tbe main track and drawn upon the side track by an engine, which, according to the evidence, is precisely not a running switch. A running switch would have been effected by cutting off the caboose while the train was in motion, and causing it, while detached from the engine, to pass upon the side track — the locomotion resulting from the momentum acquired by the caboose while in the train. This is undisputed. But it is said that what was done is the same thing as what is done as a preliminary step to making a running switch — that is, the caboose was cut off while the train was in motion and was allowed to follow. But the evidence tends to show that the danger which makes a running switch especially objectionable occurs when the actual switching takes place. If the plaintiff relies upon something as constituting negligence which would fall short of negligence, but for an express rule of the company, and its violation, he must show an actual violation.

2 verdict : prejudice. We have considered whether, under the special findings, the defendant could have been prejudiced by the admission of the rule in evidence. The first special finding is as follows: “Was it negligence for the con■ductor, O’Neill, to cut off the caboose while the train was in motion, and to signal the engineer to let on steam while the men were standing on the rear fiat car?” Ans. “Yes.” It is quite possible that the jury believed that the acts in question constituted negligence, independent of the rule and its .alleged violation. If they did, and had so specially found, then, clearly, the admission of the rule in evidence 'might have been held to be without prejudice. But it was claimed, in effect, if not especially insisted.upon, before the jury, that the acts in question constituted negligence because they were in violation of an express rule of the company. In our •opinion, therefore, the rule was not only improperly admitted, .but the admission was not without prejudice.

We remand this case for another trial with less reluctance, *442 because there is some indication in the record that the jury was not free from passion. One of the special findings is as follows: “Did the plaintiff have reasonable cause to know, by hearing the conductor’s warning, or by seeing the pin pulled, that the car on which he stood was about to be separated from the caboose next behind it ?” Ans. “No.” This finding was made against the express testimony of the plaintiff himself that he did know it.

We do not by any means deem the fact that he knew that the caboose was about to be separated as decisive of the case against him. It was a mere circumstance, tending to establish contributory negligence. If the jury had answered the question in the affirmative instead of the negative, such answer would not necessarily have been inconsistent with the general verdict. But a special finding so manifestly against the evidence is an indication of passion. Such a fact, in a proper case, in the discretion of the court below, might be allowed its influence in connection with other things in determining the question of granting a new trial.

Several other questions are presented, but as they will not probably arise again, we omit to consider them.

Reversed.