Mobile & O.R. Co. v. Coerver

• Citation: 112 F. 489
• Decision Date: 07 January 1902
• Docket Number: 752.
• Parties: MOBILE & O.R. CO. v. COERVER.
• Court: U.S. Court of Appeals — Seventh Circuit

112 F. 489

MOBILE & O.R. CO. v. COERVER.

No. 752.

United States Court of Appeals, Seventh Circuit.

January 7, 1902

John M Lansden and Angus Leek, for plaintiff in error.

Seneca M. Taylor, for defendant in error.

The plaintiff in error was the defendant below in an action of trespass on the case brought by Killian Coerver, as administrator, to recover damages for the death of John Coerver, his intestate, alleged to have been caused by the negligence of such defendant in the operation of its train over a street crossing in the city of Waterloo. The trail resulted in a verdict against the defendant and from judgement thereupon this writ of error is prosecuted. The railroad tracks upon which John Coerver was killed extend in a northerly and southern direction upon the western boundary of Waterloo, and comprise three tracks, with the main track on the east, a passing track in the center, and the westernmost is a so-called 'house track.' The street crossing is known as 'Fifth Street,' an east and west street of the city or village, 60 feet in width, which extended to the east side of the tracks; thence westward it constituted a main thoroughfare to and from the country and to a cemetery situated about a quarter of a mile west of the tracks. On the south side of Fifth street and east of the tracks are the depot, platform, and freight and coal houses of the railroad. At the time of the accident in question a freight train had arrived, and had detached a caboose and freight cars, which were placed on the main track so that the caboose extended north of a freight car which was being unloaded at the freight house, but the testimony is conflicting whether the caboose extended over the south half of the street, or merely to its south margin; and the engine with six cars attached was backing northwardly on the middle or passing track south of Fifth street to take up cars which were on the same track north of the crossing. The deceased approached the crossing from the east, driving a team of horses at a walk, seated with his son, 13 years of age, on an oil wagon, and in passing over the tracks was struck by the backing cars and killed. The witnesses, both trainmen and bystanders, concur in the testimony that the deceased neither stopped his team nor appeared to hesitate or notice the danger, and the only disputes upon the material facts are in these particulars: Whether the rear brakeman was on the rear car, or merely on the next car ahead and running toward the rear car; whether he could have been observed by the deceased, if the latter had given attention; whether his warning to the deceased was timely; and whether the engine bell was ringing.

Before JENKINS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.

SEAMAN District Judge, after the foregoing statement, .

The assignment of errors upon this record presents the question whether the verdict is supported by testimony upon the primary issue of negligence on the part of the defendant in the operation of its train, but our conclusion that either or both of the grounds mentioned below are well assigned will render it unnecessary to consider the evidence as a whole upon that serious question. The assignments referred to are (1) Error in the instruction of negligence per se, if the brakeman was not 'stationed on the rear or hindmost car,' and if he failed to signal the engineer to stop the train when he observed the danger of the deceased, and the jury are satisfied that injury could have been averted by such signal; and (2) error in the denial of a peremptory instruction of not guilty, based upon proof of contributory negligence on the part of the deceased.

1. The twelfth assignment of error rests upon an instruction of the jury as follows, and an exception thereto duly preserved:

'The court charges you, the jury, that it was the duty of the defendant, on the occasion in question, in backing its train toward Fifth street, to have a brakeman stationed on the rear or hindermost car of said backing train, whose duty it was, immediately on the appearance of danger, to have used reasonable care in signaling the engineer operating such train of such danger, so that said engineer, if he could by the exercise of reasonable care, might check the speed of said train and prevent collision; and if you believe from the evidence that on the occasion of the injury to John Coerver, deceased, which resulted in his death, there was no brakeman stationed on said rear car, or if, on the other hand, you believe from the evidence that there was a brakeman stationed there, and that he saw said deceased approaching the track on which said cars were backing, and that said deceased was in a position of danger, and likely to be run into and injured, unless the speed of said train was checked, and that, notwithstanding said brakeman saw that said deceased was in immediate danger, he failed to give any signal or notice to the engineer operating said train of said deceased's danger until the instant of the collision, and if you further believe from the evidence that, after said brakeman saw said deceased was in danger, he could, by the exercise of reasonable care, have signaled the engineer in time so that the engineer could, by the exercise of reasonable care, have checked the speed of said backing train sufficiently to have avoided the injury to said deceased, then the defendant was guilty of negligence, and if you believe from the evidence that the deceased at the time was using due care for his safety, and was guilty of no fault or negligence contributory to his injury, then you will find the defendant guilty as charged in the declaration.'

All the testimony concurs upon the issue thus stated in showing that the rear brakeman, Provo, was either at or near the north end of the train when it approached the crossing, backing northward; that such brakeman in either position could have obtained sight of the approach of the deceased a short distance only east of the crossing; that he saw the deceased and his team approaching at a walk, when a few feet distant from the tracks; that immediately thereupon he whistled and cried out to warn the deceased of the danger, but did not attempt to signal the engineer to stop the train until after such warning and about the instant the team entered upon the crossing. The only conflict in the testimony upon this point is in reference to the exact location of the brakeman,-- whether he had reached the rear car, or was on the next car forward, and merely in the act of passing to the rear car,-- and, perhaps, disagreement as to the time and character of his warning to the deceased. As stated by the witness Provo he climbed upon the rear car of the backing train at the switch, and was there stationed and on watch up to the crossing. He observed the approach of the deceased when the train was about 50 feet from the south side of the street, and the team was 10 or 15 feet east of the main track, or about...