Chicago, Rock Island & Pacific R. Co. v. United States, Civ. A. No. T-789.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: WALLACE
• Citation: 129 F. Supp. 637
• Docket Number: Civ. A. No. T-789.
• Decision Date: 10 March 1955
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Plaintiff, v. UNITED STATES of America, Defendant.

129 F. Supp. 637

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Plaintiff,
v.
UNITED STATES of America, Defendant.

Civ. A. No. T-789.

United States District Court, D. Kansas.

March 10, 1955.

129 F. Supp. 638

Clayton M. Davis and Mark L. Bennett, Topeka, Kan., for plaintiff.

William C. Farmer, Asst. U. S. Atty., Wichita, Kan., for defendant.

WALLACE, District Judge.

The plaintiff, Chicago, Rock Island and Pacific Railroad Company, a Delaware corporation, brings this action against the Government, to recover by way of subrogation $1,581 paid out by plaintiff to one of its employees for personal injuries said employee received when struck by a mail pouch thrown from a moving train by one of defendant's postal clerks. Plaintiff seeks judgment upon the theory that the Government was primarily liable for such accident in that the Government's servant was guilty of negligence in throwing the mail bag from the train; and, that plaintiff was only secondarily liable for the resulting injuries by virtue of its non-delegable duties under the Federal Employers' Liability Act.¹ The Government asserts that plaintiff is not entitled to recover for the reason that this action in essence is one for contribution in that plaintiff's station agent, in failing to warn the injured employee of the impending danger, was guilty of negligence which cooperated or concurred with the postal clerk's negligence to bring on the injury.²

The evidence indicates that the accident in question occurred at plaintiff's station in Kingsdown, Kansas, on December

129 F. Supp. 639

14, 1951, at about 12:45 P.M. while one of plaintiff's west bound trains was passing the station. The Government's mail clerk on said train, one Clyde J. Sayre, while acting within the scope of his postal duties, negligently dispatched a 25 pound mail sack on the station platform instead of near the mail crane, the place designated by postal rules and regulations, which crane is located some 300 feet west of the station building.³ The mail pouch in question struck one Charles S. Walker, employed as a locomotive engineer by plaintiff, while Walker was exercising due care for his own safety and while properly on the premises in question pursuant to his employment. Although there is some evidence that plaintiff's station agent, A. P. Maples, had observed several times previously that the mail bags were not always thrown from the trains at the precise point required by the postal instructions, the station agent had no reason to anticipate the pouch would be thrown on the station platform where Walker was standing, some 300 feet from the mail crane; and, said station agent was not guilty of negligence in failing to warn Walker of impending danger. The evidence further establishes that subsequent to the instant injury, Walker made a claim against the plaintiff under the provisions of the Federal Employers' Liability Act;⁴ and, after negotiations between the plaintiff railroad and Walker, an agreement of compromise was reached whereby Walker released plaintiff and all other persons from liability for the sum of $1,523 for personal injury plus $58 for medical expense. Said sums were just and reasonable and were paid by plaintiff to Walker. The release given by Walker provided among other...