Atchison, T. & S. F. R. Co. v. De Sedillo

• Decision Date: 04 January 1915
• Docket Number: 4158.
• Citation: 219 F. 686
• Parties: ATCHISON, T. & S.F. RY. CO. v. DE SEDILLO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

219 F. 686

ATCHISON, T. & S.F. RY. CO. v. DE SEDILLO. ^[1]

No. 4158.

United States Court of Appeals, Eighth Circuit.

January 4, 1915

W. C Reid, of Albuquerque, N.M., and Robert Dunlap, of Chicago Ill. (Gardiner Lathrop, of Chicago, Ill., H. L. Waldo, of East Las Vegas, N.M., and R. E. Twitchell, of Santa Fe, N.M on the brief), for plaintiff in error.

Marron & Wood, of Albuquerque, N.M., for defendant in error.

Before CARLAND, Circuit Judge, and THOMAS C. MUNGER and YOUMANS District Judges.

YOUMANS District Judge.

Defendant in error recovered judgment against the railway company for the killing of her husband, Rafael L. De Sedillo, by the alleged negligent operation of an engine and cars at Albuquerque, N.M. The railway company denied negligence, and alleged that the death of De Sedillo was attributable to his own negligence, and that he was intoxicated at the time he was struck by the cars of the railway company.

Some time after midnight on the 24th of March, 1912, De Sedillo left a saloon in Albuquerque. His body was found about 4 o'clock in the morning of that day upon the track in the switchyard of the railway company about 500 feet distant from a point at which a path led up to the embankment on which were laid the railway tracks of plaintiff in error. It is alleged that De Sedillo was struck while in the act of crossing the tracks at this point, after having gone along this path, with the intention of going to his mother's house, which was situated on the other side of the tracks. His mother lived in the outskirts of Albuquerque, and adjacent to the yards of the railway company. In order to reach her house from the saloon it was necessary for De Sedillo to cross the railway tracks at some point. He could have crossed at a public crossing called the Baralas Crossing, on Trumbull avenue, not very far from his mother's house. The path referred to ran across a piece of acreage. By the path the distance to her house was shorter than by way of the Baralas Crossing. There were four parallel tracks between the point where this path struck the right of way of the railway company, and the house of the mother of De Sedillo. It had rained during the night. At 7 o'clock that morning heel marks or footprints were found on the path near the railway track, and between the rails of the first track. The mother of De Sedillo heard cries during the night. From a point on the railway track near the path, and extending to a point about 25 yards from where the body was found, two marks appeared on the ground. The switching crew switched cars in the yard that night and morning.

The extent to which reliance is placed on inference in this case is shown from an except from the statement to the jury, immediately after it was impaneled, by the attorney for defendant in error. After narrating the facts, as above stated, he said: 'We will ask you to infer from this evidence as a matter of fact that the deceased was coming, from where he had been with his friends, along the path; that he went up there and hesitated before going on the tracks; that when he stepped upon the tracks he suddenly found himself confronted with these cars coming down on him out of the darkness. * * * He found these cars suddenly coming down there through the darkness. He attempted to throw himself back off the track when the cars hit him, threw him backwards in the way they were going. He seized something under the car, the brake or some other exposed place, grasped it with his hands, and began to call out for help, and no one in charge of the train hearing him, and they dragged him, hanging on this way, 500 feet or thereabouts, and went over to cross tracks, and then his heel ran into the frog and caught and pulled him loose and he was killed.'

Under the allegations of the complaint it was necessary for the plaintiff to prove:

(1) That the point at which it was alleged De Sedillo was struck was such a crossing as imposed on the railway company at all times the exercise of ordinary care to guard against injury to persons crossing at that point.

(2) That De Sedillo was struck at that point while attempting to cross.

(3) That the railway company was negligent.

For the purposes of this decision it may be assumed that the first and third essentials above enumerated were shown by the testimony. To sustain the second essential there is no direct testimony except the fact of the finding of the body of De Sedillo on the track at a point 500 feet below the alleged crossing, and the circumstances connected therewith. One foot was severed from the body, and was held in a frog. Blood was found near the body. From these facts the inference is warranted that De Sedillo was run over and killed by defendant's cars.

To show that De Sedillo was struck at the alleged crossing, the following facts are relied upon:

(1) The heel marks or footprints on the path near the track, and on the first track between the rails.

(2) Two marks along the track extending from the point near the heel marks, or footprints, to a point about 25 yards above the place where the body was found.

From these two facts the following inferences are sought to be drawn:

(1) That the heel...