Atchison, T. & S.F.R. Co. v. Wilson

• Decision Date: 01 January 1891
• Citation: 48 F. 57
• Parties: ATCHISON, T. & S.F.R. CO. v. WILSON.
• Court: U.S. Court of Appeals — Eighth Circuit

48 F. 57

ATCHISON, T. & S.F.R. CO. v. WILSON.

United States Court of Appeals, Eighth Circuit.

October Term, 1891

Gardiner Lathrop and Ben Eli Guthrie, for plaintiff in error.

B. R Dysart and John F. Mitchell, for defendant in error.

Present CALDWELL, NELSON, and HALLETT, JJ.

HALLETT J.

In the month of April, 1890, a freight train was wrecked at or near Salt river, in Macon county, Mo., on a line of railroad owned and operated by the plaintiff in error. In the evening of the same day a large force of men was assembled at the wreck for the purpose of clearing the track and repairing it as speedily as possible. These men were employes of the company of various occupations, collected from the line of the road. It was not the practice of the company to keep men for the business of removing wrecks, but in such an emergency men were called from all branches of the service as occasion might demand. For the most part they were section-men, and with them came the division superintendent of the road William E. Costello, the road-master, Charles A. Lehman, and the train-master, William B. Scott. It is not clear whether any of these officers had general supervision of the entire force and of all the work to be done at that time and place and, in the view we take of the case, it is not important to determine that question. It is enough to note the fact, clearly established by the evidence, that in repairing the track, or reconstructing it in a manner to be presently noticed, the work was under the supervision of the road-master, Charles A. Lehman, who was present and attending to that duty. Circumstances were not favorable to the work in hand. Rain had been falling for several days, and was still falling, and the ground was very wet, soft, and muddy. The work could not be completed in daylight, and it was necessary to carry it on through the night, with the aid of lanterns and bonfires, as might be possible under a wet sky. The place of the wreck was a high embankment or fill, 20 feet or more above the level of the adjacent land, and the borrow-pits below held more or less water. The width of the embankment was not much greater than the track, so that there was not much room for building a temporary track around the wreckage, or removing the old track to accomplish the same thing. The general course of the road at that place is east and west, and about 180 feet of track west of the bridge over Salt river was displaced and torn up. Upon looking over the ground, and considering the work to be done, Lehman decided to move the track two feet south of its original position on the embankment. In doing this, part of the wreckage would be avoided, and the remainder would have to be removed as the work progressed. To this work Lehman appointed Eaton, foreman of section 14, and gave his personal attention to other matters; but he says he returned twice or three times during the night 'to see how the track was being repaired, and if everything was safe. ' The work of relaying the track in this manner was carried on through the greater part of the night, until at length some trucks from a freight-car were found lying across the north rail of the original track, which it was necessary to remove. After several unsuccessful efforts to remove them, Costello, division superintendent, came upon the ground and suggested to McCormick the use of the derrick or wrecking-car. McCormick had been trying to remove the trucks by means of a cable attached to a locomotive, and with men using crow-bars and possibly other appliances. He described himself as 'car-repairer and wrecker-inspector,' and he had been for some time in charge of the derrick or wrecking-car used on this occasion. More than any other person on the ground he seems to have had some special duties, in connection with his car, in the removal of wrecks; but he had not, so far as shown in this record, more than one man in his charge, and up to that time, on this occasion, he had worked with his own hands in common with other employes of the company. He was superior to the others only in his knowledge of the use of the wrecking-car, and in having charge of it when it was in action. McCormick assented to the use of the wrecking-car, and it was brought up for the purpose of removing the trucks. It then stood on the last rails of the new track laid by Eaton, which at this point were about 12 or 15 inches south of the rails of the old track. The trucks which were to be removed were partly on the northerly side of the new and old tracks, but in front of the wrecking-car. The plan was to raise them sufficiently so that they could be moved south of both tracks when suspended on the swinging boom of the derrick. For that purpose several men were called to assist McCormick in pushing the trucks to the south, when they should be lifted above the tracks with the aid of the derrick. Other men mounted the car, by Costello's command, for the purpose of working the derrick, and in due time the trucks were elevated above the tracks as was proposed. But, contrary to all expectation, McCormick and the men who had hold of the trucks were unable to control them, and the...