Eddy v. Wallace

Decision Date15 February 1892
PartiesEDDY et al. v. WALLACE.
CourtU.S. Court of Appeals — Eighth Circuit

Clifford L. Jackson, for plaintiffs in error.

W.L Hutchings and Sandels & Hill, for defendant in error.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District judges.

SHIRAS District Judge.

The plaintiffs in error are the receivers having charge of the Missouri, Kansas & Texas Railway, and operating the trains thereon, under the orders of the United States circuit court for the district of Kansas. The defendant in error, on the 7th day of May, 1890, became a passenger on a freight train operated by the receivers, for the purpose of going from Kiowa to Stringtown station, in the Indian Territory. The train contained many cars, and, when it reached the station last named, it was halted in such a position that the caboose in which the defendant in error was seated was quite a distance from the station platform. When the train halted, the defendant in error went to the end of the car, with three grip-sacks, for the purpose of leaving the train. When he had stepped, or was about stepping, on the ground, one of the brakemen belonging to the train told him not to get off; that there was some local freight to be unloaded; and that the train would be moved lower down,-- meaning by this that the caboose would be brought near to the station platform. Thereupon the defendant in error resumed his position on the steps of the caboose with his luggage, awaiting the movement of the train. After some minutes' delay, the train was put in motion, and, as the caboose came to the platform, instead of slowing up, the speed was increased; noticing which, the defendant in error asked a brakeman whether the train had gone, and was answered: 'Yes, we are gone, but we are not running very fast. You can get off. I will throw off your grips. ' Thereupon the defendant in error jumped from the bottom step of the caboose, was thrown down and injured, his arm being broken and wrist sprained. To recover damages for the injuries thus caused him, the defendant in error brought this action in the United States court for the Indian Territory and, upon a trial before a jury, he recovered a verdict for $1,250; and, judgment being entered therefor, the receivers bring the case to this court, the assignment of errors embracing 32 specifications.

We shall not attempt to consider each specification separately, but shall confine the opinion to the few general propositions which are decisive of the rights of the parties. The errors assigned, based upon the form of the summons and the sufficiency of the service thereof, call only for the remark that these points have already been ruled upon by this court adversely to the contention of plaintiffs in error. Railroad Co. v. James, 48 F. 148; Eddy v. Lafayette, 49 F. 798, (opinion filed at present term.)

The fourth and fifth assignments of error are based upon the refusal of the trial court to permit the introduction of evidence tending to show that it was the general custom, and in accordance with the rules of the company, to stop local freight trains at such parts of the station grounds as would be most convenient for loading or unload freight, and passengers thereon were expected to leave such trains at such places as they might be stopped with reference to the convenient dispatch of the business of the company. Under some aspects which the case might have assumed, this evidence would have been admissible; but upon the issues that were in fact presented by the testimony, and upon which the case went to the jury, the same was immaterial. If the claim had been made that the passenger had been compelled to get off the cars at an unfit place, or at a point other than the platform, and had suffered injury thereby, then it might have been pertinent to prove the general rule and custom of the company in the particular named. It is true that the petition does charge, among other matters, that the train was improperly and negligently handled, in that it was not halted at or near the station platform; but in submitting the case to the jury the liability of the defendants was not made to depend in any degree upon the question of the place where the train was halted, and, as the evidence introduced did not present this as an issue in the cause, the court did not err in the ruling complained of.

It is also assigned as error that the court refused to give several instructions requested upon behalf of the receivers, the purport of which may be fairly understood from the two requests now cited, to-wit:

'The court instructs the jury that if you find that plaintiff entered defendants' local freight train on the day in question at the station of Kiowa, for the purpose of taking passage to the station of Stringtown, as a passenger upon said train, and that said train was stopped by defendants' agents and servants at the station of Stringtown sufficient length of time to enable plaintiff to safely alight therefrom, and that such stoppage of said train was made at a place and in a manner customary in the management and operation of similar freight trains upon defendants' said line of railway, and that plaintiff availed himself of said opportunity to so alight from said train, and did alight therefrom, then you will further find that defendants fully performed their duty to plaintiff in affording him an opportunity to leave said train, and that plaintiff, on so alighting from said train, ceased to be a passenger upon said train.'
'The court instructs the jury that if you find that plaintiff entered upon defendants' local freight train on the day in question at the station of Kiowa, for the purpose of taking passage to the station of Stringtown, as a passenger upon said train, and that said train was stopped by defendants' agents and servants at the station of Stringtown sufficient length of time to enable plaintiff to safely alight therefrom, and that such stoppage of said train was made at a place and in a manner customary to the management and operation of similar freight trains upon defendants' said line of railway, and that plaintiff availed himself of said opportunity to so alight from said train, and did alight therefrom, then you will further find that defendants fully performed their duty to plaintiff in affording him an opportunity to leave said train, and that plaintiff, upon so alighting from said train, ceased to be a passenger on said train; and if you further find that plaintiff, believing that he could save himself the trouble of walking from where the car in which he had been riding had been stopped to the defendants' depot or said station of
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