Tuttle v. Detroit, Grand Haven & Milwaukee Ry., 122 U.S. 189 (1887)

This was an action for negligence resulting in the death of plaintiff’s husband and intestate, Orson Tuttle, a brakeman in the defendant’s employment. The declaration contained three counts, the first of which charged that on or about the 30th of October, 1882, the said Tuttle was in the employ of the defendant in the city of Detroit at the “ Detroit, Grand Haven and Milwaukee yards,” and in the course of his ordinary employment was ordered to couple some cats standing on a certain track known as “ boot-jack siding; ” that said siding is a double-curve track containing a very sharp curve; that in compliance with the order he proceeded to couple certain cars on said siding, which were near a certain boat-slip, and while he was endeavoring to couple said cars the “ draw-heads” of the cars failed to meet and passed each other, allowing the said cars to come so close together that he was p. 190crushed to death; that there were no bumpers nor other device on either of the said cars to prevent them from going together, in case said draw-heads failed to meet and passed each other; and that the only device on said cars for the purpose of keeping them apart and to receive the concussion in coupling was the draw-heads aforesaid. The charge of negligence was, that the defendant, disregarding its duty, neglected, in the construction of its said cars, to provide any means to prevent injuring its said employe in case the draw-heads of its cars so constructed should fail to meet or pass each other under circumstances set forth; and that the said defendant, in the construction of said “boot-jack siding,” so called, negligently and unskilfully constructed the same with so sharp a curve that the draw-heads of the said cars failed to meet and passed each other, thereby causing the death of the said Orson Tuttle while in the act of coupling said cars as aforesaid, without fault or negligence on his part.

The third count was substantially the same as the first; the second count, which charged a defective construction of the car, in not supplying it with bumpers, or other means of preventing the draw-heads from passing each other, was abandoned at the trial. As stated in the brief of the plaintiff’s counsel, “ the first and third counts allege that boot-jack siding was negligently and unskilfully constructed by the defendant with so sharp a curve that the draw-heads of the cars in use by it would pass each other and cause the cars to crush any one who attempted to make a coupling thereon: ” and this alleged faulty construction of the track was the principal matter of contest on the trial; the plaintiff contending that the defendant was bound, in duty to its workmen and employes, to construct a track that would not expose them to the danger which existed in this case; whilst the defendant contended, and offered evidence to prove, that the track was constructed according to the requirements of the situation, a sharp curve being necessary at that place in order to place the cars, when loading, alongside of the dock or slip; that such curves are not uncommon in station yards; that in such conditions the draw-heads of cars quite often pass each other p. 191when the cars come together; that this must be presumed to have been well known to Tuttle, the deceased, who was an experienced yard man; that he accepted the employment with a full knowledge of its risks, and must be held to have assumed them; and that it was negligence on his part to place himself in such a situation as to incur the danger and suffer the injury complained of. It appeared by the evidence that, when trying to make the coupling, the deceased stood on the inside of the curve where the corners of the cars come in contact when the draw-heads pass each other, and will crush a person caught between them; whereas, on the outside of the curve they are widely separated, and there is no danger. The defendants contended that the position thus taken by Tuttle was contributory negligence on his part. On the other hand, the plaintiff offered evidence tending to show that it was usual for the brakeman in coupling cars on a curve to stand on the inside so as to see the engineer and exchange signals with him for stopping, backing, or going forward. The defendants contended, and offered evidence tending to show, that this was not necessary, as there were always the yard master or others standing by and cooperating, by whom the signals could be given.

In the recent case of Northern Pacific RaiVroad v. Herbert^ p. 192116 U. S. 642, this court, in an opinion by Mr. Justice Field, after stating the rule with reference to the risks incident to the employment, said:

We have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a very sharp one at the place where the accident happened, yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passengers and the public is not involved; much less that it should be left to the varying and uncertain opinions of juries to determine such an engineering question. (For analogous cases as to the right of a manufacturer to choose the kind of machinery he will use in his business, see Richards v. Rough, 53 Mich. 212; Hayden v. Smithville Man. Co., 29 Conn. 548, 558.) The interest of railroad companies themselves is so strongly in favor of easy curves as a means of facilitating the movement of their cars, that it may well be left to the discretion of their officers and engineers in what manner to construct them for the proper transaction of their business in yards, &c. It must be a very extraordinary case, indeed, in which their discretion in this matter should be interfered with in determining their obligations to their employes. The brakemen and others employed to work in such situations must decide for themselves whether they will encounter the hazards incidental thereto ; and if they decide to do so, they must be content to assume the risks. For the views of this court in a cognate matter, see Ra/ndall v. Baltimore <& Ohio Railroad, 109 U. S. 478, 482, where it was said: “A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation connected with the moving of trains, assumes the risks of that condition of things. It is for those who enter into such employments to exercise all that care and caution which the perils of the business in each p. 195case demand. The perils in the present case, arising from the sharpness of the curve were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which his employes have reason to suppose is in proper working condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. One of these dangers was that of the draw-bars slipping and passing each other when the cars were brought together. It was his duty to look out for this and avoid it. The danger existed only on the inside of the curve. This must have been known to him. It will be presumed that, as an experienced brakeman, he did know it; for it is one of those things which happen, in the course of his employment, under such conditions as existed here.

Without attempting, therefore, to give a summary of the evidence, we have no hesitation in saying that the judge was right in holding that the deceased, by voluntarily assuming the risk of remaining on the inside of the draw-bar, brought the injury upon himself, and the judge was right, therefore, in directing a verdict for the defendant. We are led to this conclusion, not only on the ground that the deceased, by his own negligence, contributed to the accident, but on the broader ground, already alluded to, that a. person who enters into the service of another in a particular employment assumes the risks incident to such employment. Judge Cooley announces the rule in the following terms: “ The rule is now well settled,” says he, “ that, in general, when a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. The reason most generally assigned for this rule is, that the servant, when he engages in the employment, does so m view of all the incidental hazards, and that he and his employer, when making their negotiations, fixing the terms and agreeing upon the compensation that shall be paid to him, !nust have contemplated these as having an important bearing uP°n their stipulations. As the servant then knows that he p. 196will be exposed to the incidental risk, ‘ he must be supposed to have contracted that, as between himself and the master, he would run this risk.’ ” The author proceeds to show that this is also a rule of public policy, inasmuch as an opposite doctrine would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business, but it would be an encouragement to the servant to omit that, diligence and caution which he is in duty bound to exercise on behalf of his master, to protect him against the misconduct and negligence of others in the same service; and in exercising such diligence and caution he would have a better security against injury to himself than any recourse to the master for damages could afford.

After the case was opened to the jury on the part of the United States, and before any testimony was offered, the defendants moved, upon such opening, that the court direct a verdict for the defendants, on the ground that there was no statute of the United States whereby the value of the merchandise could be recovered by reason of the acts alleged to have been committed by the defendants as consignees of the goods, which was the capacity in which they received and entered the goods, the goods being the property of the manufacturers of them in Switzerland, and being consigned to the defendants for sale on commission. The facts sought to be proved against the defendants were that they, knowingly and with intent to defraud the revenue, entered the goods at m- p. 199voice prices lower than their actual market value at the time and place of exportation. The court ruled that there was no existing statute of the United States under which the plaintiff could recover upon any possible proof, and that a verdict must be directed for the defendants. 19 Fed. Rep. 893. The plaintiffs excepted to this ruling.

The word “ cost,” as distinguished from the market value or wholesale price, was first used in the act of March 1, 1823. It is only in still more recent legislation that the word “ cost ” is applied in the same legislation to purchasers and market value, to manufacturers and their consignees and agents. Numerous cases arose under this section and are reported, but in none of them did the distinction now sought to be set up between purchaser and manufacturer as applicable to that section obtain any recognition. Those cases extended from the United States v. Riddle, 5 Cranch, 311, to Smoltz's Case, decided at December Term, 1869, reported in 5 C. Cl. 294. As the distinction then was not made between purchaser and manufacturer until after the passage of the act of 1799, it cannot with propriety be made to relate back, and be applied to the interpretation of the section passed before it was known and recognized. It is, therefore, contended that § 2839 when originally enacted applied to purchasers and manufacturers alike, and, unless repealed, is applicable to this case. That it was not repealed p. 201up to December, 1869, is abundantly established by the following cases: Wood v. United States, 16 Pet. 342; United States v. Sixty-Seven Packages Dry Goods, 17 How. 85; United States v. Nine Cases Silk Hats, 17 How. 97; United States v. One Package Merchandise, 17 How. 98; United States v. One Case Clocks, 17 How. 99 ; Smoltz v. United States, 5 C. Cl. 301.

The two sections of the Revised Statutes upon which the United States base their right of recovery in the case are §§ 2839 and 2864. Section 2839 was originally enacted as part of § 66 of the act of March 2,1799, c. 22,1 Stat. 677, and reads as follows: “ Sec. 2839. If any merchandise, of which entry has been made in the office of a collector, is not invoiced according to the actual cost thereof at the place of exportation p. 203with design to evade payment of duty, all such merchandise, or the value thereof, to be recovered of the person making entry, shall be forfeited.”

The bill of exceptions contains the following statement as to the proceedings after the above ruling of the court: The plaintiffs asked leave to prove, successively, that items contained in the invoices mentioned in the complaint and bill of particulars were undervalued, within the meaning of the last clause of §12 of the act of June 22, 1874, which reads as follows: “Anything contained in any act which provides for the forfeiture or confiscation of an entire invoice in consequence of any item or items contained in the same being undervalued, be, and the same is hereby, repealed; ” that the defendants, being consignees of the merchandise mentioned in the complaint, knowingly made entries thereof by means of false invoices; that the defendants, being agents of the merchandise mentioned in the complaint, knowingly made entry thereof by means of false invoices; that the defendants, being consignees of the merchandise mentioned in the complaint, knowingly made entry thereof by means of invoices which did not contain a true statement of the particulars required in that part of the act of March 3, 1863, preceding the provision of the act which was reenacted as § 2864 of the Revised Statutes; that the defendants being agents of the merchandise mentioned in the complaint, knowingly made entry thereof by means of invoices which did not contain a true statement of the particulars required in that part of the act of March 3, 1863, preceding the p. 204provision of the act which was reenacted as § 2864 of the Revised Statutes; that the defendants, being the consignees of the merchandise mentioned in the complaint, knowingly made entry thereof by means of false and fraudulent documents and papers; and that the defendants, being the agents of the merchandise mentioned in the complaint, knowingly made entry thereof by means of false and fraudulent documents and papers. These requests being successively denied, the plaintiffs excepted to each refusal. The jury under direction of the court, found a verdict for the defendants, to which direction the plaintiffs excepted. After a judgment for the defendants, the plaintiffs took the case to the Circuit Court by a writ of error, where the judgment was affirmed, and they have brought the case to this court by a writ of error.

Section 2854, originally a part of § 1 of the act of March 3, 1863, c. 76, 12 Stat. 737, provides as follows: “AH such invoices” (that is, all invoices of merchandise imported from any foreign country) “ shall, at or before the shipment of the merchandise, be produced to the consul, vice-consul, or commercial agent of the United States nearest the place of shipment, for the use of the United States, and shall have indorsed thereon, when so produced, a declaration signed by the purchaser, manufacturer, owner, or agent, setting forth that the invoice is in aH respects true; that it contains, if the merchandise mentioned therein is subject to ad valorem duty, and was obtained by purchase, a true and full statement of the time when and the place where the same was purchased, and the actual cost thereof, and of aH charges thereon; and that no discounts, bounties, or drawbacks are contained in the invoice but such as have actually been allowed thereon; and when obtained in any other manner than by purchase, the actual market value thereof at the time and place when and where the same was procured or manufactured; and, if subject to specific duty, the actual quantity thereof; and that no different invoice of the merchandise, mentioned in the invoice so produced, has been or wiH be furnished to any one. If the p. 206merchandise was actually purchased, the declaration shall also contain a statement that the currency in which such invoice is made out is the currency which was actually paid for the merchandise by the purchaser.”

“ If any owner, consignee, or “ That any owner, importer, agent of any merchandise shallconsignee, agent, or other per-knowingly make, or attemptson who shall, with intent to to make, an entry thereof bydefraud the revenue, make, or means of any false invoice, orattempt to make, any entry false certificate of a consul, of imported merchandise, by vice-consul, or commercialmeans of any fraudulent or agent, or of any invoice whichfalse invoice, affidavit, letter, does not contain a true state- or paper, or by means of any ment of all the particularsfalse statement, written or hereinbefore required, or byverbal, or who shall be guilty means of any other false orof any wilful act or omission fraudulent document or paper, by means whereof the United or of any other false or fraud- States shall be deprived of the ulent practice or appliancelawful duties, or any portion whatsoever, such merchandisethereof, accruing upon the meror the value thereof shall bechandise, or any portion there-forfeited.” of, embraced or referred to in p. 207such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, shall, for each offence, be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited; which forfeiture shall only apply to the whole of the merchandise in the case or package containing the particular article or articles of merchandise to which said fraud or alleged fraud relates; and anything contained in any act which provides for the forfeiture or confiscation of an entire invoice in consequence of any item or items contained in the same being undervalued, be, and the same is hereby, repealed.”

Section 13 of the act of June 22, 1874, provides that any Merchandise entered by any person violating § 12, but not p. 208subject to forfeiture under that section, may, while owned by him or while in his possession, “ to double the amount claimed, be taken by the collector and held as security for the payment of any fine or fines incurred as aforesaid.” Section 14 provides that the omission, without intent thereby to defraud the revenue, to add, on entry, to the invoice, certain specified charges, shall not be a cause of forfeiture of the goods “ or of the value thereof.” Section 16 provides that, in suits to enforce the forfeiture of goods, “ or to recover the value thereof,” no fine, penalty, or forfeiture shall be imposed unless the jury shall find that the alleged acts were done with an actual intention to defraud the United States. Section 26 repeals all acts and parts of acts inconsistent with the provisions of that act. There is not in the act any other repealing provision, except that contained in the concluding words of § 12, above quoted.

On a full review of the above-recited provisions of the act of June 22, 1874, and of its other provisions, it is apparent that, so far, at least, as the acts subject to the penalties denounced in § 2864 are concerned, they are entirely covered by the provisions of § 12 of the act of June 22, 1874. There is no act denounced by § 2864 that is not embraced, both as to person and character of act, by the provisions of § 12. latter section adds, as a punishment for the offence, fine or p. 209imprisonment, or both, and a forfeiture of the merchandise, in addition to the fine. It leaves out a forfeiture of the value of the merchandise, and forfeiture of such value is inconsistent with the terms of § 12, and is, therefore, repealed by it. The absolute forfeiture of the merchandise, provided for by § 12, is inconsistent, also, with the alternative forfeiture of the merchandise or its value, provided for by § 2864. The provisions of the two statutes cannot stand together. Norris v. Crocker, 13 How. 429,438; United States v. Tynen, 11 WaH. 88,92; Murdoch v. City of Memphis, 20 Wall. 590, 617; United States v. Claflin, 97 U. S. 546, 552, 553 ; King n. Cornell, 106 U. S. 395, 396 ; Pana v. Bowler, 107 IT. S. 529, 538.