Illinois Cent. R. Co. v. Stewart

Decision Date14 April 1915
Docket Number4320.
Citation223 F. 30
PartiesILLINOIS CENT. R. CO. v. STEWART.
CourtU.S. Court of Appeals — Eighth Circuit

Wm Baird & Sons, of Omaha, Neb., Helsell & Helsell, of Ft dodge, Iowa, and Blewett Lee and W. S. Horton, both of Chicago, Ill., for plaintiff in error.

J. A McKenzie, of Omaha, Neb. (McKenzie & Cox and J. E. Von Dorn all of Omaha, Neb., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

CARLAND Circuit Judge.

This action was commenced by defendant in error, hereinafter called plaintiff, against plaintiff in error, hereinafter called defendant, to recover damages for negligently causing the death of one Harry M. Toft on January 27, 1913. Deceased was an employe of the South Omaha Joint Car Inspection Association, and defendant was engaged in interstate transportation, using the services of the Car Inspection Association in connection with other railroads. On the above date, at about 9:15 p.m., deceased was engaged in repairing a defective coupling on one of defendant's cars, and while so engaged was caught by a moving car belonging to defendant and fatally injured. The track on which the injury occurred was known as the Illinois Central delivery track. At the place of the injury it had an incline of three-tenths of a foot per 100 feet. There was a string of 18 or 20 cars standing on this track. The car at the northwesterly end of the string had the broken coupling which Toft was repairing. In addition to this string of cars, there were 3 other cars placed on the same track about 15 to 20 feet from the car on which deceased was working. These 3 cars moved by force of gravity, striking deceased and causing his death. The alleged act of negligence submitted to the jury was the leaving of these 3 cars without having the hand brakes thereon set. The alleged errors of the trial court will be taken up in the order in which they are argued by counsel in the brief.

It is first urged that error was committed in the refusal of the trial court to direct a verdict in favor of defendant, for the reason that the complaint showed that the action was brought under the statute of Nebraska, while the evidence showed that the case was one triable only under the federal Employers' Liability Law. St. Louis, I. M. & S.R. Co. v. Hesterly, 228 U.S. 702, 33 Sup.Ct. 703, 57 L.Ed. 1031; St. Louis, S.F. & T.R. Co. v. Seale, 229 U.S. 156, 33 Sup.

Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156. This contention is based upon the following allegation of the petition:

'That this action is brought for and on behalf of the next of kin of the said deceased, the said deceased having left no widow or children surviving him; that the mother of the said deceased, Carrie Toft, of the age of fifty-three (53) years, the sister, Mabel Toft, twenty (20) years of age, and a brother, Milton Toft, seventeen (17) years of age, are the only surviving next of kin of the said deceased; that the mother of the said deceased at the time of his death was entirely, and the sister and brother were in part, dependent upon the said deceased for their care, support, and maintenance.'

Whether or not the allegation above quoted was sufficient under the law of Nebraska we need not determine, as we are satisfied that it was sufficient under the federal Employers' Liability Act. Section 1, c. 149, 35 Stat. 65, provides:

'Or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe.'

The case was in fact tried as one under the federal Employers' Liability Act. The court said in its charge to the jury:

'The action is brought here by Mrs. Stewart, the administratrix; but it is entirely for the benefit of the mother under the statute. Under the circumstances here, no one else is entitled to any recovery. She is the sole beneficiary. The only damages which could be recovered, if any are given, are the pecuniary damages which the mother has suffered by the death of Mr. Toft.'

No evidence was introduced at the trial tending to show the age or dependency of the brother and sister. The reference to them in the complaint was treated as surplusage. As the mother was the beneficiary under the federal law, we see no error in this ruling of the court.

It is next claimed that the trial court erred in refusing to direct a verdict in favor of plaintiff in error, for the reason that the evidence showed that the deceased was guilty of contributory negligence. In this connection the following rules were introduced in evidence:

'A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car, or train, indicates that workmen are under or about it; when thus protected it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen.'
'Joint Car Inspection Association. All Employees: It has been called to my attention that there are being repairs made to cars on transfers and in Albright without the protection of a flag. In the future, where it is necessary to make repairs on cars, you must protect yourself by flags. W. H. Cressey, South Omaha, Nebraska, February 16, 1911.'

It is claimed that the deceased under these rules was bound to protect himself by either a flag or a blue light. Considering, however, the act of negligence which was submitted to the jury, and the...

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2 cases
  • Russell v. Missouri Pacific Railroad Company
    • United States
    • Missouri Supreme Court
    • April 11, 1927
    ...Co. v. Wright, 80 So. 93; Central R. Co. v. Sharkey, 259 F. 144; San Pedro, Railroad Co. v. Brown, 258 F. 806; Illinois Central Railroad Co. v. Stewart, 223 F. 30; Chicago Railroad Co. v. Ward, 173 P. Illinois Central Railroad Co. v. Norris, 245 F. 926; Willever v. Railroad, 89 N. J. L. 697......
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    • U.S. Court of Appeals — Ninth Circuit
    • May 10, 1915

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