On Petition por a Eehearing.
Bicknell, C. C.The appellee in this petition claims that the instruction was right, and that if wrong, it was harmless. The instruction was not right, because it stated that the plaintiff would be entitled to recover on proving that it was dangerous to make such a coupling, and that the deceased was directed to make it, and that in making it he was killed by reason of the want of adaptation to each other of the two couplers.
A great deal of work about railways is dangerous. It does not follow that because the work required is dangerous, therefore, if the workman be hurt, the employer will be liable. The jury should have been told: If you find that such facts are proved, and also find that they show negligence in the defendant, the plaintiff may recover.
Filed March 27, 1884.The instruction, as given, means either that such facts of themselves constitute negligence, which the judge had no right to assume, or else it means that such facts, if proved, were sufficient to authorize a recovery without reference to the question of negligence, and in either view the instruction was wrong. It states that the plaintiff will be entitled to recover if certain facts are proved, of which negligence is not one. Such an instruction could not be harmless; it may have caused the verdict; the presumption is it did. The petition should be overruled.
Per Curiam. — The petition for a rehearing is overruled.