Greg, This is interesting! Do we know which Abraham Behymer this was? Do you know a birth date or anyway to specifically identify him? Rob gdbehymer wrote: > > U.S. Supreme Court > > TEXAS & P. R. CO. v. BEHYMER, 189 U.S. 468 (1903) > > 189 U.S. 468 > > TEXAS & PACIFIC RAILWAY COMPANY, Plff. in Err., > v. > ABE BEHYMER. > No. 224. > > Argued March 20, April 6, 1903. > Decided April 20, 1903. > > Messrs. David D. Duncan, John F. Dillon, and Winslow S. Pierce for > plaintiff in error. > > Mr. Cone Johnson for defendant in error. > > The opinion of the court was delivered by Mr. Justice Holmes: > > This is an action for personal injuries, brought by an employee against a > railroad company. It was > tried in the circuit court, where the plaintiff had a verdict. It then was > taken to the circuit court of > appeals on a writ of error and bill of excep- [189 U.S. 468, 469] tions by > the company, and now is > brought here on a further writ of error, the company being a United States > corporation. A good deal > of the argument for the railroad is devoted to disputing the testimony of > the plaintiff below and > arguing that the verdict was excessive, but of course we have nothing to do > with that. New York, L. > E. & W. R. Co. v. Winter, 143 U.S. 60, 75, 36 S. L. ed. 71, 80, 12 Sup. Ct. > Rep. 356; Lincoln v. > Power, 151 U.S. 436, 38 L. ed. 224, 14 Sup. Ct. Rep. 387. We must assume > the most favorable > statement of the plaintiff's case to be true, unless some particular > request for instructions makes it > necessary to deal with conflicting evidence. That statement may be made in > a few words. > > Behymer had been in the employ of the company as a brakeman about three > months. On February > 7, 1899, at Big Sandy, in Texas, he was ordered by the conductor of a local > freight train to get up > on some cars standing on a siding and let off the brakes, so that the > engine might move them to > the main track and add them to the train. The tops of the cars were covered > with ice, as all > concerned knew. He obeyed orders; the engine picked up the cars, moved to > the main track, and > stopped suddenly. The cars ran forward to the extent of the slack and back > again, as they were > moving up hill. The jerk upset Behymer's balance, the bottom of his > trousers caught in a projecting > nail in the running board, and he was thrown between the cars. It is true > that the jury might have > drawn a different conclusion from his evidence, or have disbelieved it in > essential points, but they > also were at liberty to find, as they must be taken to have found, that the > foregoing statement is > true. The car belonged to another road, but was in the charge of the > defendant company, and, > according to the statement of the counsel for the plaintiff in error, had > been inspected before the > accident, although we should have doubted whether the testimony meant to go > so far. Behymer > based his claim upon negligence in stopping the cars so suddenly with > knowledge of his position > and the slippery condition of the roof of the car, and upon the projection > of the nail, which > increased the danger and contributed to his fall. It should be added that, > by a statute of Texas, if > there was negligence, the fact that it was the [189 U.S. 468, 470] > negligence of a fellow servant was > not a defense. Tex. Gen. Laws 1897, Special Session, chap. 6, 1; 2 Sayles's > Tex. Civil Stat. 1897, > art. 4560 f. > > The fundamental error alleged in the exceptions to the charge is that the > court declined to rule that > the chance of such an accident as happened was one of the risks that the > plaintiff assumed, or > that the question whether the defendant was liable for it depended on > whether the freight train was > handled in the usual and ordinary way. Instead of that, the court left it > to the jury to say whether the > train was handled with ordinary care; that is, the care that a person of > ordinary prudence would use > under the same circumstances. This exception needs no discussion. The > charge embodied one of > the commonplaces of the law. What usually is done may be evidence of what > ought to be done, but > what ought to be done is fixed by a standard of reasonable prudence, > whether it usually is complied > with or not. Wabash R. Co. v. McDaniels, 107 U.S. 454, 27 L. ed. 605, 2 > Sup. Ct. Rep. 932. No > doubt a certain amount of bumping and jerking is to be expected on freight > trains, and, under > ordinary circumstances, cannot be complained of. Yet, it can be avoided, if > necessary, and when > the particular and known condition of the train makes a sudden bump, > obviously dangerous to > those known to be on top of the cars, we are not prepared to say that a > jury would not be warranted > in finding that an easy stop is a duty. If it was negligent to stop as the > train did stop, the risk of it > was not assumed by the plaintiff. Texas & P. R. Co. v. Archibald, 170 U.S. > 665, 672, 42 S. L. ed. > 1188, 1191, 18 Sup. Ct. Rep. 777. > > However, the plaintiff did not rely on the management of the train alone. > The projecting nail was > another element in his case. The jury were instructed with regard to that, > that the railroad company > was not liable unless there was a nail there improperly projecting, and a > reasonable inspection > would have discovered and remedied the defect. The car was in the custody > of the company. > There is no suggestion that the company had not had an opportunity to > inspect, and the contrary > was assumed by a request for instructions on the part of the company. > Indeed, as we have said, > its counsel interprets the evidence as meaning that the car had been > inspected before [189 U.S. 468, > 471] the accident. It is not pressed that there was error on this point. > See Mackin v. Boston & A. R. > Co. 135 Mass. 201, 46 Am. Rep. 456; Glynn v. Central R. Co. 175 Mass. 510, > 512, 56 N. E. 698. > The jury were instructed properly on the subject of assumption of risks and > contributory > negligence, and we think it unnecessary to deal more specifically with this > part of the case. > > It was argued that Behymer had aggravated the injury by refusing proper > surgical treatment. With > regard to this the jury were instructed in substance, but at more length, > that it was his duty to submit > to all treatment that a reasonably prudent person would have submitted to, > in order to improve his > condition, and that no damages could be allowed which might have been > prevented by reasonable > care. It is suggested that, as a prudent man, he might have postponed > recovery from his injury to > recovery of damages. The instructions plainly excluded such a view. The > argument hardly is > serious. We have examined all the minute criticisms on the rulings and > refusals to rule, and > discover no error. We deem it unnecessary to answer them in greater detail. > > Judgment affirmed. > > ==== BEHYMER Mailing List ==== > Behymer webpage: BillyBob's Genealogy Homepage > http://members.iglou.com/wbehymer/ > Thanks, BillyBob!