St. Louis & S.F.R. Co. v. Bishard

Decision Date30 July 1906
Docket Number2,286.
Citation147 F. 496
PartiesST. LOUIS & S.F.R. CO. v. BISHARD.
CourtU.S. Court of Appeals — Eighth Circuit

James Black (L. F. Parker and W. F. Evans, on the brief), for plaintiff in error.

J. I Sheppard and A. M. Keene, for defendant in error.

This was an action under a Kansas statute by Augusta Bishard, as administratrix, to recover damages of the railroad company for the death of her husband, alleged to have been caused by its negligence and that of its employes. The plaintiff had judgment in the trial court, and the railroad company prosecuted this writ of error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

The plaintiff's intestate was a locomotive fireman and at the time of his death was in the service of the railroad company upon a passenger train called the 'Meteor.' About 5 o'clock in the morning of December 21, 1903, the Meteor northbound, was wrecked near Godfrey, a small station in Kansas, and the fireman and engineer were killed. The contention of the company that the trial court should have directed a verdict in its favor requires a consideration of the conditions surrounding the accident. We may say, however without reciting all of the evidence, that it was abundantly sufficient to establish negligence on the part of the employes of the company and that the case turns more particularly upon the question whether the fireman was himself guilty of negligence contributing to his death.

The station house at Godfrey is on the west side of the main track. There was no telegraph operator or agent there in the nighttime. To the eastward of the main track is a passing track about 2,000 feet in length, which connects with the main track about 1,200 feet south of the station. There is also a connection at the north, but with this we have little concern as the wreck occurred near the other end. At the south connection there is a switch stand about 6 feet east of the main track surmounted by a lamp which, when lighted shows green on two opposite sides, and red, the usual signal of danger, on the other two. The mechanism is so arranged that when the switch is thrown to let a north-bound train from the main track onto the passing track the lamp shows red northward and southward. The lamp is between 7 and 8 feet above the ties. Commencing near the south end of the station the main track curves to the westward for nearly a half of a mile. During the night and several hours before the accident occurred a north-bound freight train with a leaking engine became stalled upon the main line a short distance north of the station, and it became necessary that trains running in either direction should use the passing track to avoid the blockade. The duty therefore devolved upon the trainmen of the stranded train to advise the other trains of the situation by appropriate signals. Several trains made the passage in safety. The Meteor, north-bound, was running under special orders which required it to maintain a speed of about 55 miles an hour. Those in charge of it were not advised by telegraphic orders of the obstruction at Godfrey. The passing track was not designed or so constructed as to take a rapidly moving train in safety. It was clearly insufficient for such traffic and hence the necessity of warning signals to other trains including the Meteor. We may at this point say that we do not regard the physical condition of the passing track, concerning which considerable testimony was given, as in itself primary evidence of the negligence of the company. It seemed to be sufficient for its ordinary use as a passing track for trains under control or moving slowly. Its structure, however, was one of the conditions of the situation, and the negligence of the company consisted, so far as this case is concerned, in allowing the Meteor, running under special orders at a high rate of speed, to run on to the passing track without sufficient warning of the thrown switch. A rule of the company, applicable to such an emergency, required the conductor of the stranded freight train to send a flagman back with stop signals, and it was the duty of the flagman to place torpedoes upon the rail at certain distances from the point of danger. There was sufficient proof of quite a satisfactory character that the flagman who was sent back wholly neglected to perform this duty and also proof that he did not otherwise warn the engineer and fireman of the approaching Meteor. There was evidence tending to show that the lamp at the switch stand was not lighted at the time of the accident; also that it had not always theretofore been kept burning in the nighttime. The Meteor, approaching from the south at high speed, took the passing track at the switch and the wreck occurred; the engine being derailed when it had proceeded about 90 feet from the point of entrance.

The company claims that, as the switch was thrown for the passing track, the lamp, if burning, must have shown the red sign of danger, and that if it was not burning when the Meteor approached, the mere absence of a light at that customary place was in itself a sufficient warning under a rule of the company to that effect. Here arises the principal contention of contributory negligence on the part of the fireman. It is said that it was his duty, especially in approaching stations, to keep a lookout for signals, and that as his train was moving on the curve his position on the west side of the engine would have enabled him to look along the chord of the arc and to detect either the presence of the red light at the switch stand or the absence of any light as the case may have been, and that in either event it was his duty to immediately notify the engineer of the result of his observations. Counsel for the company requested the trial court to charge the jury that it was the paramount duty of the fireman to keep this lookout and to warn the engineer in time to avoid the danger, and that if he could have seen the signal in time to warn the engineer and did not keep the lookout, then the verdict should be for the defendant. The request was denied. The trial court in lieu thereof charged the jury that it was the duty of the fireman to keep the lookout when not otherwise necessarily engaged. We are of the opinion that the trial court was right. There were other important and imperative duties which the fireman was required by the rules of the company and the nature of his position to perform. Those rules expressly placed him under the supervision and direction of the engineer and required him to obey the orders of the latter respecting the performance of his duties. In keeping a lookout on the track for signals he was merely an assistant acting under the direction of the engineer, and it cannot be said that upon the occasion in question it was his paramount duty to be on the lookout at any particular moment. The rules did not so provide, and we cannot infer that the engineer so ordered. Other duties of moment may...

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27 cases
  • Orr v. State
    • United States
    • Alabama Court of Appeals
    • August 19, 1958
    ...for such inquiries preceding the Allen charge. While in one of the cases cited, the exact proportion was elicited, St. Louis & S. F. R. Co. v. Bishard, 8 Cir., 147 F. 496, 500, and see also Weiderman v. United States, 8 Cir., 10 F.2d 745, yet in the other two it was not. Stewart v. United S......
  • Stewart v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 12, 1924
    ...United States v. Allis (C.C.) 73 F. 165, loc. cit. 182; St. Louis & San Francisco R.R. Co. v. Bishard, 147 F. 496, loc. cit. 500-501, 78 C.C.A. 62; Allis United States, 155 U.S. 117, loc. cit. 123, 15 Sup.Ct. 36, 39 L.Ed. 91; Allen v. United States, 164 U.S. 492, loc. cit. 501, 17 Sup.Ct. 1......
  • Wilson v. Chicago, Burlington & Quincy Railroad Co.
    • United States
    • Missouri Supreme Court
    • June 25, 1927
    ... ... and such fact cannot be established by mere surmise ...           In ... St. Louis & San Francisco Railroad Company v. Bishard, ... 147 F. 496, 498, plaintiff's intestate was a ... ...
  • U.S. v. Warfield
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 2, 1996
    ...135, 71 L.Ed. 345 (1926). Our circuit's case law declared it so before the Supreme Court decided Brasfield. See St. Louis & S.F.R.R. v. Bishard, 147 F. 496 (8th Cir.1906); Stewart v. United States, 300 F. 769, 782 (8th In reviewing a claim that an Allen charge was impermissibly coercive, we......
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