Chicago & NW Ry. Co. v. Struthers

• Decision Date: 31 August 1931
• Docket Number: No. 9067.,9067.
• Citation: 52 F.2d 88
• Parties: CHICAGO & N. W. RY. CO v. STRUTHERS.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F.2d 88 (1931)

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

No. 9067.

Circuit Court of Appeals, Eighth Circuit.

July 20, 1931.

Rehearing Denied August 31, 1931.

Abbott W. Sawyer, of Winona, Minn. (William T. Faricy and Warren Newcome, both of St. Paul, Minn., Samuel H. Cady, of Chicago, Ill., and Leslie L. Brown and Stephen H. Somsen, both of Winona, Minn., on the briefs), for appellant.

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.

Before KENYON and BOOTH, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

This is an appeal from a judgment in the District Court awarding damages to appellee, hereinafter referred to as the plaintiff, on account of the death of one Eugene F. Curran, who was killed July 15, 1929, while employed by the appellant, hereinafter referred to as the defendant, as a locomotive fireman. Suit was brought in the District Court by the plaintiff as special administrator of the estate of Curran upon the theory that while Curran was working for the defendant and within the scope of his employment the locomotive engine he was riding was caused to be derailed, resulting in his death, by defendant's negligence in permitting gravel and stone to be and to accumulate on its track at the point of the derailment.

Reversal of the judgment is sought by the defendant chiefly on three grounds: First, that there was no substantial evidence that the defendant was negligent in permitting an accumulation of stone and gravel at the point where its locomotive was derailed; second, that there was no substantial evidence that such an accumulation, if there was one, was the proximate cause of the derailment; and, third, that the charge to the jury authorized a verdict for the plaintiff on a ground which there was no evidence to support. A proper consideration of the contentions made here by the defendant necessitates some recital of the evidence.

There is no controversy but that at the time and place referred to in the pleadings and testimony Curran was serving the defendant as a locomotive fireman, that from some cause the locomotive he was riding was derailed and wrecked, and that Curran was so gravely injured that he shortly died. The place of derailment was at a highway crossing near the station of Princeton, Wis.

The public highway which crosses the defendant's railway track where the derailment took place is a graveled highway. On one side of the railway the highway approaches the railway track on a slight downgrade. At the intersection of the track and highway, at the time of the derailment, on the inner side of each rail a second steel rail was laid sideways so that the ball of the second rail was hard against the inner upright side of the first rail, and so that the inner side of the first rail made with the side and upturned base of the second rail a steel trough through which ran the flanges of locomotive and car wheels. This steel trough was sometimes spoken of by the witnesses in the case as a flangeway. This flangeway was 2 5/8 inches deep and 3 inches wide.

In the plaintiffs theory it was this steel bottomed flangeway which the defendant permitted to become so filled with packed stone and gravel, thrown into it by the wheels of vehicles passing on the graveled highway, that, striking the accumulation, the wheels of the locomotive on which Curran rode were caused to be lifted and to leave the rail.

1. Was there substantial evidence that the defendant negligently permitted in the flangeway at the point in question an accumulation of stone and gravel? The answer to this question depends upon the answers to two others: Was there substantial evidence of an accumulation of stone and gravel? Was there substantial evidence that the defendant had notice of the presence at the point of derailment of a dangerous accumulation of stone and gravel?

The time of the derailment was at 6:30 o'clock, Monday morning, July 15, 1929. Plaintiff's principal witness, one Welmon R. Kennison, testified that he observed the derailment; that immediately thereafter he observed the condition of the flangeways; that one flangeway was filled with stone and gravel to within half an inch of the top of the rail; that in that accumulation was a groove left by the flange of a revolving wheel. This groove began about the center of the crossing, ran in an easterly direction for a few feet, then vanished. Two feet east of the end of this groove a flange mark appeared on the top of the rail.

This witness testified that this particular flangeway at the point referred to had been filled with stones and gravel since as early as July 5th and that before the derailment he had last observed its condition in that respect at 3 o'clock Sunday afternoon, July 14, 1929, when it was filled with stones and gravel level with the top of the rail. He had observed that gravel was thrown toward the flangeway by passing automobiles.

The testimony of this witness (to some extent it was corroborated by others) undoubtedly tended to prove that there was and for two weeks had been an accumulation of gravel and stones in the flangeway at the point of derailment. It cannot be said there was not substantial evidence of that fact unless the testimony of Kinneson is rejected as incredible. It was for the jury to pass on the matter of his credibility. Gunning v. Cooley, 281 U. S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720; 38 Cyclopedia of Law, 1518.

But an accumulation of stones and gravel in flangeways may not self-evidently be dangerous to passing trains. In addition, therefore, to proof of the presence...