172 F. 864 (7th Cir. 1909), 1,463, Wabash R. Co. v. United States

Docket Nº:1,463.
Citation:172 F. 864
Case Date:June 23, 1909
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 864

172 F. 864 (7th Cir. 1909)




No. 1,463.

United States Court of Appeals, Seventh Circuit.

June 23, 1909

Edward C. Kramer, for plaintiff in error.

W. E. Trautman and George A. Crow, for the United States.

Before GROSSCUP, BAKER, and KOHLSAAT, Circuit Judges.

GROSSCUP, Circuit Judge (after stating the facts as above).

Two questions are raised by the assignments of error that we deem it necessary to dispose of; first, and relating to the conviction on the first count only, was the plaintiff in error entitled to show that the coupling on the B end of the engine was not intended to be used, and, secondly, whether in complying with the provisions of the Safety Appliance Act, proof of a high degree of care and diligence to keep its coupling apparatus in good repair, as required by the Act, would relieve it from liability under the Act as against mere proof by the Government that

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the couplers were not in fact in good working order at a given time during the course of an interstate journey.

(1) The first question is raised by the following instruction, offered and refused:

'That if the jury believe from the evidence that the engine No. 516 had originally been equipped with automatic couplers at both the A end and the B end, but that at the time alleged in the first count of the plaintiff's declaration, the lock chain had been disconnected, and the knuckle removed from the coupler at the B end and that thereby the said coupler at the B end of said engine was placed in such a condition that no other car could be coupled to the engine at such B end or uncoupled therefrom either by going between the cars or not, and that the coupler at the A end of such engine was in good condition and that the said coupler at the A end of said engine was the only one used by defendant at the time in question in moving interstate traffic, then the defendant is not liable for the condition of the said coupler at the B end of said engine and you should find the defendant not guilty as to the first count of plaintiff's declaration,'

-- and by evidence, excluded by the Court, tending to prove that the coupling on the B end of the engine was not intended to be used-- that such coupler had been disconnected and the knuckle taken out, in pursuance of a purpose that it should not be used.

The argument of the...

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