Chicago & NW Ry. Co. v. Payne

• Decision Date: 17 September 1925
• Docket Number: No. 6933.,6933.
• Citation: 8 F.2d 332
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: CHICAGO & N. W. RY. CO. v. PAYNE.

8 F.2d 332 (1925)

CHICAGO & N. W. RY. CO. v. PAYNE.

No. 6933.

Circuit Court of Appeals, Eighth Circuit.

September 17, 1925.

Robert D. Neely, of Omaha, Neb. (Wymer Dressler and Paul S. Topping, both of Omaha, Neb., on the brief), for plaintiff in error.

Hugh J. Boyle, of Norfolk, Neb. (M. F. Harrington, of Omaha, Neb., on the brief), for defendant in error.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

LEWIS, Circuit Judge.

About midnight of April 3, 1920, Payne suffered an injury to his left ankle while he was in the employ of the railway company in its yards at Norfolk, Nebraska. He attributed the injury to the negligence of the railway company, alleging in his complaint that it "carelessly, negligently and wrongfully kept and maintained a pile of cinders, coal and ashes close to one of its railroad tracks in its yards at Norfolk, Nebraska, and in a place where plaintiff and other employees necessarily had to travel in working at or about locomotives and where the plaintiff necessarily had to travel to reach one of the locomotives which he was about to fire, putting coal therein and keeping the fire going which it was his duty to do."

He further alleged that he stepped into the pile of cinders, coal and ashes, and by reason of stepping on a lump of coal which was part of said pile he received the injury complained of. The answer was a general denial. Payne recovered judgment.

It was Payne's duty as an employee of the railway company to keep the engines in the yard fired up during the night, going from one to the other for that purpose. There was no witness to the accident except Payne himself, and no one testified to having seen the pile of ashes and cinders, either before or after the occurrence. He went to the roundhouse after it occurred and others testified that his ankle was then very much swollen. He testified that the pile was between tracks, about two feet from the end of the ties, that it was about two feet wide, four inches or so deep and as long as himself, that when he stepped into it his foot turned on a lump of coal which the ashes and cinders covered and he fell on the pile, that he did not know that the piece of coal or the ashes and cinders were there before he stepped on it, that the pile was wet and made his shoes and overalls wet. He had a lighted lantern in his right hand, and after he fell he saw the pile of ashes and the lump of coal. The lump of coal was about six inches long, four inches wide, three or four inches thick, and sharp on the top edge. At the time the accident occurred he was walking along the track, going from one engine to another in the discharge of his duties. After he was injured he saw other lumps of coal about the pile of ashes and cinders. There was a roundhouse in the yards, a water tank, a coal chute for the supply of engines and a cinder pit, over which the engines were placed to clean out the ashes and cinders. There were a great many tracks in the yards. No one, not even Payne, could account for the pile of ashes and cinders being between tracks rather than between rails, and no one ever saw the pile, so far as the record shows, except Payne. If the ashes and cinders were between the tracks, they were at an unusual place and must have been shoveled from between the rails after being dropped from an engine, or brought from elsewhere; and there is no evidence indicating by whom this was done, nor when it was done, nor how long they had been there before the accident, nor how long they remained. On that subject there is only conjecture. The burden was on Payne to show that the railway company was negligent in a duty it owed to him, that its negligence was the proximate cause of his injury, and that a like injury due to the alleged negligence could have been anticipated by a reasonably prudent person. Cole v. Savings & Loan Society, 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416; Western Union Tel. Co. v. Schriver, 141 F. 538, 550, 72 C. C. A. 596, 4 L. R. A. (N. S.) 678; United States F. & G. Co. v. Des Moines Nat. Bank, 145 F. 273, 280, 74 C. C. A. 553; Winters v. B. & O. R. Co., 177 F. 44, 50, 100 C. C. A. 462; Great Northern R. Co. v. Johnson, 207 F. 521, 125 C. C. A. 183.

There was substantial dispute as to how the injury occurred and the extent of it. Three days after the accident X-ray pictures were taken of Payne's left ankle in the office of the railway company's surgeon, and he testified that Payne at that time stated: "He was stepping from the engine and there was some coal scattered along the side, scattered around, and that he stepped on a chunk of coal and it turned his ankle;" that he said nothing about a pile of ashes.

The railway company produced at the trial a written statement which it claimed had been made by Payne to its claim agent, wherein he stated the manner in which he had received the injury. Payne denied that the signature to the statement was his. There was evidence that it was his. In answering a question in that statement as to how the accident occurred Payne's purported answer was this: "Got off engine while watching it, and going to another stepped on a piece of coal that laid on the ground and sprained left ankle."

On April 4th two X-ray pictures of Payne's ankle were taken at the office of his physician, and two X-ray pictures of an ankle were produced at the trial by Payne's physician. Those two pictures showed two broken bones in the ankle. The two X-ray pictures...