Atchison, T. & S.F.R. Co. v. Parker, 166.
| Decision Date | 06 February 1893 |
| Docket Number | 166. |
| Citation | 55 F. 595 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | ATCHISON, T. & S.F.R. CO. v. PARKER. |
Statement by THAYER, District Judge:
The defendant in error brought a suit against the Atchison Topeka & Sante Fe Railroad Company (hereafter called the Railway Company) to recover damages for injuries sustained on the 13th day of July, 1890, while in its employ as a freight conductor. The complaint on which the case was tried alleged in substance that at the time of the accident the Railway Company owned an old, worn-out, and defective engine, which was unfit to run upon its road, and had been sent to the town of Purcell, in the Indian Territory, to be there used in the yards as a switch engine, with full knowledge on the part of the Railway Company that the valves of said engine, and the ratchet which controlled the throttle valve, were so worn and out of repair that said engine would at times take steam in spite of the efforts of the engineer in charge to control it and thus become unmanageable and dangerous. It was further alleged that, in consequence of the unmanageable condition of the engine in question in the respect last mentioned, it escaped from the control of the engineer while it was being used for switching purposes in the Railway Company's yard at Purcell, and dashed violently into a caboose car standing on a side track, in which the defendant in error was at the time sleeping, thereby precipitating him from his berth fracturing his collar bone, and otherwise injuring him. The evidence offered by the defendant in error tended strongly to show that the ratchet and dog which controlled the throttle valve of the engine were in fact badly out of order, and that the engineer lost control of the engine on the occasion of the accident in consequence of such defect. On the other hand, the Railway Company contended that the ratchet and dog were in an ordinarily safe and fit condition to control the action of the throttle valve at the time of the accident, and that the collision was due to the carelessness of the engineer. The evidence further tended to show that the plaintiff's collar bone was fractured, and that he was disabled from pursuing his ordinary avocation for the space of about three months, but that he was not otherwise seriously hurt. The jury returned a verdict in favor of the plaintiff, and assessed his damages at the sum of $12,500.
George R. Peck, Henry E. Asp, and Robert Dunlap, for plaintiff in error.
David Overmyer and W. A. Ledbetter, for defendant in error.
Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
THAYER District Judge, (after stating the facts as above.)
The only questions presented by the record which we find it necessary to consider, concern the action of the trial court in admitting certain testimony. An exception was taken by the Railway Company because the trial court permitted the plaintiff to show by the defendant's general manager, and by other witnesses, that it was an imperative rule of the defendant company to either discharge, suspend, or reprimand its employes whenever a collision or other serious accident was occasioned by their fault or negligence, and that the engineer who had charge of the switch engine at the time the plaintiff was hurt had neither been reprimanded, suspended, nor discharged by any of his superior officers by reason of his conduct on that occasion. It is insisted by the plaintiff in error that such evidence was irrelevant and immaterial, and that it should have been excluded. We think, however, that the testimony was relevant, in view of the fact that the main contention of the defendant appears to have been, that the collision was caused by the fault of the engineer. It may not have been very persuasive evidence that the engineer was blameless, but, so long as the defendant company undertook to shield itself from liability by the plea that the collision was due to the negligence of the engineer, who was a fellow servant of the plaintiff, we think it was permissible to show the existence of the rule, and the fact that the engineer had never been reprimanded by any of his superior officers whose duty it was to reprimand him if his conduct on the occasion of the accident was in any respect culpable. The testimony had a direct tendency to rebut one of the defenses on which the Railway Company evidently relied. It was in the nature of an admission on the part of the company that, prior to the trial at least, it did not regard the engineer as deserving of censure.
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