
    Doyle v. The Chicago, St. Paul and Kansas City Railway Company.
    1, Railroads: injury to employe: negligence: leaving pin on PLATFORM: UNFORESEEN RESULT : evidence. Plaintiff, being witb others employed in repairing one of defendant’s bridges, withdrew a short distance to allow a passenger train, running at the rate of about thirty miles an hour, to pass. As it passed, an old, rusty and bent coupling pin was hurled by a wheel of a car, striking plaintiff on the head, and causing the injury complained of. The evidence (see opinion) showed that the pin was not on the bridge, and justified the jury in concluding that it was lying loose upon a platform of one of the cars. The pin had a hole in the head for a chain, and was such as was used upon cars having Miller’s platform, which was on the cars in the train causing the accident; but the pin was not chained to the platform. Held that to allow it to lie loose upon the platform was negligence, because it was liable to ‘ fall and become an obstruction on the track, and that defendant was liable for such negligence in this case, even though the precise accident and injury which occurred could not have been foreseen and expected from the falling of the pin from the platform.
    2. The Same: evidence. In such case a brakeman upon the train was asked if, in case a coupling-pin should roll off a platform, he would expect any extraordinary force would be given to it, so that it would do injury. Held that the answer sought was immaterial, and that an objection on that ground was properly sustained.
    
      3. The Same: evidence. In such case the court rightly rejected evidence offered to show that the only reason for chaining the pins to the platform was that they might be at hand when wanted,— the question being solely as to defendant’s duty, and not as to its motive for doing it.
    
      Appeal from Marshall District Court. — Hon. S. M. Weaver, Judge.
    Filed, May 21, 1889.
    Action to recover for personal injuries sustained by plaintiff from alleged negligence of defendant’s employes while operating a train on its railroad. There was a judgment upon a verdict for plaintiff. Defendant appeals.
    
      Hubbard & Dawley, for appellant.
    
      T. Brown and J. L. Carney, for appellee.
   Beck, J.

I. The undisputed facts of the case are these: Plaintiff, with other workmen, was employed in repairing a bridge upon defendant's road, A passenger train approaching, the workmen withdrew twelve or fifteen feet from ffie track. As the train passed at a speed 0f about thirty miles an hour, a coupling-pin of iron, about one foot long and an inch and a quarter in diameter, was hurled from the train, and struck plaintiff upon the head, and fractured his skull. The injury was severe, and from it plaintiff was ill and disabled for several months, and still suffers therefrom. It is shown by the evidence, and we think is not disputed, that the pin was thrown by the wheel of a car. A witness testifies that he heard and saw the pin “striking the wheels,” and saw it thrown in the direction plaintiff, with witness, was standing. The workmen repairing the bridge, or some of them, testified that the pin could not have been thrown from the bridge, for they were working upon the part of the bridge near which the accident occurred. They were employed in repairing the track on the bridge, and doing other work repairing the bridge which required them to make close examination of it. The pin was old, rusty and bent. It had a hole in the head for a chain, such as is used upon cars having Miller’s platform, which was on the cars in the train causing the accident. It is shown that it was not of the structure of the pins used by defendant, and a trainman who helped to make up the train testified that he looked for a loose pin upon the platforms of the train just before it started on the trip, and found none, and there might have been a pin on the train which he overlooked. It appears that pins of various patterns and different construction are found upon trains, being exchanged from cars of other roads. It is not shown by the direct evidence that the pin was on the train. We think the evidence authorizes the conclusion that the pin was on one of the platforms of the train. It is impossible to conclude that it was upon the bridge before the train passed. It was, then, upon the train before it was hurled away, injuring plaintiff; and the conclusion is authorized that in falling from the platform of the train it was struck or taken up by the car wheel, and thrown with force, striking plaintiff. The jury were authorized to find, from the evidence, as they did find, that the pin was upon the train prior to the accident; and, as such pins are constantly used in making up trains, and are often left upon the platforms of cars for convenience in getting them when they are wanted, the jury were authorized to infer that the pin was left upon the cars by some employe of the defendant. The petition alleges that the pin was negligently left upon the train without being fastened by a chain.

the same. II. Counsel for defendant insists that the evidence wholly fails to sustain the allegation of negligence. This position is based upon the fact that there is no direct’ evidence that the pin was ever on the train. But, as we have pointed out, it cannot be doubted that it was not upon the bridge. It must, therefore, have been upon the cars, and, as pins of this character are in constant use, it is a fair inference that it was left on the cars by an employe of defendant. It was not chained, as are pins used upon cars having the kind of couplings in use upon the cars in the train causing the injury. Pins are thus fastened to prevent loss or misplacement. They are less liable to fall from the cars, and therefore prudence requires them to be chained. In falling they may cause an accident. It was therefore negligence to permit the pin to be upon the cars without being secured in its place.

the same. III. It is insisted by counsel for defendant that if it be found that the pin was on the car there can be no conclusion that the defendant was negligent, for the reason that the accident was so unusual and extraordinary that it could not reasonably have been expected to happen. It may be true that the accident, in the precise form and with the precise attending circumstances which resulted in plaintiffs injury, could not have been expected to happen from the falling of the pin from the car upon the track. The reason or imagination is unable to determine just the effect of an obstruction upon the track of a railroad. The result may be unusual, unexpected, indeed a surprise to the most experienced, — never before heard of by any one, — yet the act of putting the obstruction on the track is none the less negligent, for it threatens danger in many directions, and is liable to produce many familiar results which would cause injury. Now, surely, if it causes an injury in any way that may be expected,— if the results have before been seen, — it cannot be said not to be negligent because the result was before unheard of, and not within the observation of any one, or even not anticipated in the exercise of reason or imagination. The negligence in this case produced an effect never. before observed. It cannot, therefore, be said that it was the exercise of care. The rulings of the district court upon instructions are in accord with the foregoing conclusions.

IV. A brakeman upon the train was asked if, in case a coupling-pin' should roll off of a platform, he would expect any extraordinary force would be given it, so that it would do injury. An objection to the question was rightly sustained. As we have seen, the fact that the accident was unexpected would not excuse negligence in causing it. The evidence, therefore, is immaterial.

Y. Defendant proposed to prove that the pins with the Miller platforms were chained, so that they could be at hand when wanted. The evidence was rightly rejected. If the pins would less probably be the cause of danger and injury when chained, due care required that they be kept so secured. It is plain that the motive with which due care is exercised cannot be an excuse for omitting it. So, if the pin was less likely to do injury when chained, it should have been kept fastened, though it was not chained, to avoid injury. The judgment of the district court is Affirmed.  