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This was an action brought by William J. Everett, and prosecuted after his decease by Jane Everett, his administratrix, against the Northern Pacific Railroad Company to recover damages for personal injuries received while in its service. There was a verdict for plaintiff, and to review the judgment entered thereon, defendant brings the case here on writ of error.

Statement by Mr. Justice SHIRAS: [152 U.S. 107, 108]   William J. Everett brought an action in the district court of the sixth judicial circuit of the territory of Dakota on November 13, 1889, against the Northern Pacific Railroad Company, seeking to recover from it the sum of $30,000 as damages for injuries received by him in coupling cars owned and controlled by the company, alleging that he had received such injuries while in the employ of the company, as a yard switchman, in its yards at Jamestown, Dakota Territory, and while there engaged in the performance of his regular duties. The accident had happened, as he stated in his complaint, under the following circumstances: On July 6, 1889, he was at work in the yard, and was ordered by the yard foreman to couple together a car loaded with bridge timbers and a box car which was standing upon a side track. The car bearing the timbers was moved by a switch engine. This car was loaded in an unusual and dangerous manner, in that the timbers extended so far beyond each end of the car as to leave insufficient space for coupling with safety. The plaintiff had, however, no notice or knowledge of this fact. He attempted to carry out the orders which he had received, and in so doing his head was caught between the box car and the end of a heavy timber which projected over the end of the other car a distance of 22 inches. His injuries, thus received, were of a serious and permanent character, and consisted in the impairment, not only of his physical powers and senses, but also of his mental faculties.

The defendant admitted, in its answer, its ownership and control of the cars mentioned, but denied generally all the other averments of the complaint upon which were founded the plaintiff's alleged right to a recovery from it, and averred that the injuries, if any, received by the plaintiff were the result of his own negligence, and not of that of the defendant. [152 U.S. 107, 109]   After the deposition, on behalf of the plaintiff, of a witness residing in the state of Washington had been taken, in pursuance of a commission to take testimony, issued out of the said territorial court, the portion of the territory in which the action was pending became a part of the state of North Dakota, and before further proceedings were had in the case it was removed into the circuit court of the United States for the district of North Dakota, in which court a trial was had before the court and a jury.

On the trial, after all the evidence for both parties had been heard, the defendant moved the court to instruct the jury to return a verdict for the defendant, for the reason that the evidence in the case would not warrant a verdict for the plaintiff. The court refused to so instruct the jury, and the defendant excepted to this ruling.

The court instructed the jury as follows:

'The fact that the plaintiff was injured in an effort to couple defendant's cars at the time and place mentioned has not, on the trial, been contested, but the defendant says the plaintiff's injury was the result of his own negligence or that his own negligence contributed to his injury; and if this answer of the defendant is true, it is a complete defense to this action.

'To entitle the plaintiff to a verdict he must satisfy you by a preponderance of the evidence of these two principal facts: First, that his injury was the result of the negligence of the railroad company; and, second, that his own neglect was not the occasion of the injury, and did not in any manner contribute to it. If the plaintiff's injury resulted from his own negligence, or if his own negligence contributed to his injury, he cannot recover.

'The particular act, which the plaintiff alleges constitutes the neglect on the part of the defendant which resulted in his injury is, that the flat car, which was in motion, and which he was ordered to couple to a box car standing on the track, was loaded with lumber, which projected twenty-two inches, or about that distance, over the end of the car where the coupling was to be made. [152 U.S. 107, 110]   'The first question for you to determine is, was this an unusual or improper or negligent manner of loading lumber on a flat car? If you answer this question in the negative, you need inquire no further, but will return a verdict for the defendant.

'If you answer this question in the affirmative, you will then inquire whether such negligent loading of the lumber on the car was the cause of the plaintiff's injury, unmixed with any negligence on his part; and if you find that it was, your verdict will be for the plaintiff.

'The plaintiff was bound to exercise care and diligence in his employment of coupling cars. He was bound to use all his senses as actively and intelligently as any prudent man, having a knowledge of the hazardous character of his business, would have done under like circumstance. The business is a dangerous one, and imposed on him the duty of exercising great care and caution.

'If the plaintiff saw that the lumber projected over the end of the car before he attempted the coupling, or if he could have seen it if he had exercised great care and diligence, which, under the circumstances, it was incumbent upon him to exercise, then he can claim nothing on account of the injury resulting from such projecting lumber, and the injury must be attributed to his own negligence.

'If you find the lumber was negligently loaded-that is, in an unusual and dangerous manner-and that this fact was unknown to the plaintiff, then, when the plaintiff was ordered to couple the cars, he had a right to assume that the car was properly loaded, and act on that assumption; but if, before the peril was encountered, he discovered the projecting lumber, he should have desisted from any effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, if it was practicable for him to do so, and if by the exercise of proper diligence he might have discovered the projecting lumber before the accident, and in time to avoid it, he cannot recover.'

The defendant objected to the last paragraph of the foregoing instructions, and moved that it be withdrawn. The motion was denied, to which ruling of the court the defendant [152 U.S. 107, 111]   excepted. The case was then submitted to the jury, which rendered a verdict kfor the plaintiff, and awarded him damages in the sum of $7,000. Judgment in accordance with the verdict was entered on April 25, 1890. The defendant thereupon sued out a writ of error from this court.

James McNaught, A. H. Garland, and Heber J. May, for plaintiff in error.

S. L. Glaspell, for defendant in error.

Mr. Justice SHIRAS, (after stating the facts in the foregoing language,) delivered the opinion of the court.

While it is true that the defendant company excepted to the court's refusal to give, on the whole evidence, a peremptory charge in favor of the defendant, and has assigned such refusals for error, yet, in the brief of plaintiff in error, the learned counsel have not thought fit to discuss those assignments, but have put their case mainly upon the error alleged to have been committed by the trial court in instructing the jury in the following terms:

'If you find the lumber was negligently loaded-that is, in an unusual manner-and that this fact was unknown to the plaintiff, then, when the plaintiff was ordered to couple the cars, he had a right to assume that the car was properly loaded, and act on that assumption; but if, before the peril was encountered, he discovered the projecting lumber, he should have desisted from any effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, if it was practicable for him to do so, and if by the exercise of proper diligence he might have discovered the projecting lumber before the accident, and in time to avoid it, he cannot recover.'

The criticism made upon this instruction is that the court erred in stating that Everett had a right to assume that the car was properly loaded, without, at the same time, telling the jury that some portion of the duties of a car inspector were cast upon Everett himself, and that he should have discharged those duties before he undertook the work. [152 U.S. 107, 112]   But though the court did say that Everett had a right to assume that the car was properly loaded, and to act on that assumption, yet, at the same time, the court told the jury that if Everett had discovered the projecting lumber before the peril was encountered he should have desisted from his effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, and that if, by the exercise of proper diligence, he might have discovered the projecting timber before the accident and in time to avoid it, he could not recover.

In effect, the jury were told to find whether the car was or was not properly loaded, and whether the plaintiff, by the exercise of proper diligence, could or could not have discovered the projecting timber before the cars came together and in time to avoid the danger. In other words, the jury were instructed that if the car was negligently loaded, with the sticks of timber extending too far beyond the end of the car, and if the plaintiff could not, in the exercise of proper diligence, have perceived the projecting timber in time to escape, then he was entitled to recover.

We are unable to detect any error or unfairness in these instructions.

It appeared that Everett was a young and inexperienced man; that this was his first service in attempting to couple a car with a projecting load. The duty he was expected to perform gave him no time to narrowly inspect the approaching car or to observe its condition. His attention was not called to the projecting timber until he was in the very act of making the coupling, and when his effort to avoid it was too late. He had first to throw the switch to receive the approaching car, and then run ahead and get ready to put the pin in the drawhead. It was shown that there was no pin in the drawhead of the stationary car, and he was obliged to pick one up and put it in place, ready to make the coupling. These duties gave him no opportunity to closely scan the car that was in rapid motion bebind him. In such circumstances, when the whole transaction is the work of a moment, and when his duty calls upon him to act promptly, a man cannot be expected [152 U.S. 107, 113]   to act with circumspection. At all events, we think that, in view of the fact that the car was improperly loaded, that Everett was new and inexperienced in such work, and that he was required to perform the double duty of throwing the switch and making the coupling, the case was an appropriate one for submission to a jury.

In the case of Dunlap v. Railroad Co., 130 U.S. 652 , 9 Sup. Ct. 647, we held that the circuit court erred in not submitting the question of contributory negligence to the jury, as the conclusion did not follow, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish.

And in Railroad Co. v. Powers, 149 U.S. 44 , 13 Sup. Ct. 748, we said that where, in an action against a common carrier to recover damages for injuries, there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because the facts, being undisputed, fairminded men will honestly draw different conclusions from them.

In Sullivan v. Railroad Co., 154 Mass. 527, 28 N. E. 911, it was held that 'the court is not permitted to take from the jury these questions of negligence and to decide them for the jury and for the case, unless the evidence shows that the negligence of the defendant in error was gross and willful; if it was less than that, then the questions of negligence were for the jury, and are all settled in favor of defendant in error by the verdict.'

It is not easy, in a subject of this kind, to lay down unbending rules, and conflicting cases can readily be found. But, without pursuing the subject further, we are satisfied that, in the present case, there was no conclusive evidence of a want of due care on the part of Everett in not observing the projecting timber while he was in the discharge of his duty, and while his attention was directed to the work in which he was engaged.

The judgment of the court below is affirmed.

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