Atchison, T. & S.F. Ry. Co. v. Taylor

• Decision Date: 06 May 1912
• Docket Number: 3,611.
• Citation: 196 F. 878
• Parties: ATCHISON, T. & S.F. RY. CO. v. TAYLOR.
• Court: U.S. Court of Appeals — Eighth Circuit

196 F. 878

ATCHISON, T. & S.F. RY. CO. v. TAYLOR.

No. 3,611.

United States Court of Appeals, Eighth Circuit.

May 6, 1912

S. T Bledsoe (J. R. Cottingham, George M. Green, and John Devereux, on the brief), for plaintiff in error.

H. B Martin (A. F. Moss, Bayard T. Hainer, V. E. McInnis, and M E. Turner, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

This was an action by the next of kin of James E. Taylor deceased, to recover damages for his death in a railroad accident. The plaintiff recovered judgment in the Circuit Court and the railway company sued out this writ of error.

Taylor shipped a car load of household effects, farming implements, and live stock from Nebraska to Bliss, Okl. At Kansas City, Mo., where the defendant company received the car, an emigrant outfit contract was executed permitting Taylor to accompany the shipment without charge. It recited that travel by freight trains or in freight cars was necessarily more dangerous than upon passenger trains, and contained agreements by Taylor that he would 'remain in a safe place in the caboose attached to the cars while the train is in motion, ' that he would 'not get on or be on any freight car while switching is being done at stations or other places,' and that, if he was injured while violating those conditions, the company should not be liable. The train reached Bliss in the nighttime and Taylor, who was riding in the freight car in violation of his contract, was killed when the car was shunted to a siding by a flying or drop switch and violently collided with another car standing there. The contract was a valid one, and none of the trainmen were authorized to waive or modify its provisions.

So far, it would appear that the case was a plain one for the company, but the plaintiff relies upon what is commonly termed the 'last chance rule'; that is to say, that the employes of the company in charge of the train negligently made the switch and caused the accident with prior knowledge that Taylor was in the car and in a dangerous position. It is doubtful that the petition was framed to present this cause of action, but it contains an averment which, standing alone, would be sufficient, and as the trial proceeded in part at least along that line, and the trial court gave instructions upon it, the case of plaintiff will be regarded as being so founded. There is no other ground upon which plaintiff has any standing in court. This is practically conceded by counsel.

The limitations of the last chance rule have been quite often defined by this court. It does not supplant or destroy the doctrine of contributory negligence, but is an exception or qualification, and depends upon special and particular conditions which must be made to appear. It presupposes negligence of the defendant and contributory negligence on the part of the person injured and imposes liability if after perceiving the dangerous position in which the latter has negligently placed himself the injury might then have been avoided by the former by the exercise of reasonable care. It does not apply where there is no negligence of the defendant occurring after that of the person injured, or where the defendant does not discover his exposure to danger in time to prevent the accident. Illinois Central Railway Co. v. Ackerman, 76 C.C.A. 13, 144 F. 959; Denver City Tramway Co. v. Cobb, 90 C.C.A. 459, 164 F. 41; St. Louis & S. F. Railroad Co. v. Summers, 97 C.C.A. 328, 173 F. 358; Illinois Central Railway Co. v. Nelson, 97 C.C.A. 331, 173 F. 915. It must affirmatively be pleaded, if relied on. Hart, Adm'r, v. Railway, 196 F. 180, 115 C.C.A. . . . (decided at the December term, 1911).

Taylor rode in the freight car from a point in Kansas to its destination,...