Atwood v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 05 February 1896
• Parties: ATWOOD v. CHICAGO, R.I. & P. RY. CO. et al.
• Court: U.S. District Court — Western District of Missouri

72 F. 447

ATWOOD v. CHICAGO, R.I. & P. RY. CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

February 5, 1896

The Rock Island Company owned and operated a railway from Denver to the city of Topeka, and its trains were run and operated over the Union Pacific Railway from Topeka to Kansas City and from Kansas City to Topeka, under a contract made between the Union Pacific Company and the Rock Island Company. The contract, among other things, provided that the Union Pacific Company should make rules and regulations for the operation of its railway between the points above mentioned, which should have like application to all engines and trains which may be moved over said railway, and that the trains of both companies should move under and in accordance with the orders of the superintendent or train dispatcher of the Union Pacific Company. The Rock Island train was manned by employes hired and paid by that company. The deceased, at the time of the collision, was in charge as conductor of the Union Pacific train, and was an employe of and working for that company. The plaintiff alleged in her petition that the death of her husband was caused by the negligence and carelessness of the employes of the Rock Island Company in charge of its train.

David Overmeyer and D. W. Mulvane, for plaintiff.

John W Beebe and N. H. Loomas, for defendant Union Pacific Ry. Co.

W. F Evans, Frank P. Sebree, and J. E. Dolman, for defendant Chicago, R.I. & P. Ry. Co.

PHILLIPS District Judge (orally).

At the conclusion of the plaintiff's evidence, each defendant has interposed, in the nature of a demurrer to the evidence an instruction directing the jury to find for the defendants notwithstanding the evidence. It is evident that the petition in this case was framed on the theory of the right of a joint action against the defendant corporations growing out of concurring acts of negligence contributing to the injury in question. It alleges that the defendant the Rock Island Railway Company 'operated its trains between the city of Topeka, Kansas, and Kansas City, Missouri, over the railroad of the said Union Pacific Railroad Company, hereinafter described. ' There is no averment as to the relation existing between these two companies,-- no allegation as to the terms or conditions upon which the Rock Island Company operated its trains over the track of the Union Pacific Railroad Company. It appears from the petition that the railroad track was and is the property of the Union Pacific Company. Whether by lease or other contract the Rock Island Company ran its trains on this railroad does not appear. The averment of the petition would hold good even if the Rock Island Company were a mere intruder or trespasser upon this road.

When it comes to the specific allegations by which it was sought to fix the liability of the Union Pacific Railroad Company for this injury, it is alleged as follows:

'Plaintiff further alleges that said Union Pacific train No. 1-12 left Lawrence about 4:30 o'clock on the morning of the 2d day of January, 1894; that, under the rules governing the operation of all the trains upon the railroad in question, it was the duty of the Chicago, Rock Island and Pacific train to remain at Lawrence ten minutes after the departure of the said Union Pacific train; that it was the duty of the receivers of the Union Pacific Railway Company, through its train dispatchers and telegraph operators, to hold said Rock Island train at Lawrence for ten minutes after the departure of the Union Pacific train, but, wholly disregarding its duty in that respect, the Chicago, Rock Island & Pacific train negligently and carelessly left Lawrence, and followed said Union Pacific train, within five minutes after the departure of said Union Pacific train; that, wholly disregarding their duties in that respect, said receivers of the Union Pacific Company negligently and carelessly permitted said Rock Island train to leave Lawrence within five minutes after the departure of said Union Pacific train No. 1-12.'

There is no other negligent act or omission of duty contributing to the injury alleged against the Union Pacific Railway Company.

It is a well-recognized rule of pleading and practice in this jurisdiction, following the repeated rulings of the supreme court of this state, that the proof can never be broader than the averments of the petition; that a party cannot recover upon other ground of negligence than that specifically alleged; for the reason that the defendant comes to court with his evidence to meet the issue, and none other, presented by the plaintiff's petition. It is not correct, as claimed by counsel for plaintiff, that recovery may be had upon this petition because of the assumed failure of the defendant to hold the train at some other point 10 minutes between Lawrence and the place of disaster. Under the petition, Lawrence is the initial point, and the negligence on the part of the Union Pacific Company is limited and restricted to the station at Lawrence. The neglect is alleged to have occurred there, and not elsewhere. There was no special effort on the part of the plaintiff to show by direct testimony the precise time or minute at which the Rock Island train was permitted to follow the Union Pacific train out of the Lawrence station, and there was certainly no effort on the part of the Union Pacific Railway Company to help out the plaintiff in respect of this issue, whatever other assistance she may have received from the Union Pacific Company in her effort to fix the responsibility for her husband's death on the Rock Island Company. It is true, as contended by plaintiff's counsel, that there is some evidence tending to show that the Rock Island Company, at the Lawrence station assisted in pushing and starting the Union Pacific train out of that station; but how long it stopped after that time we do not know. It appears that there was a watering station and a switch at Bismark Grove, at which trains were accustomed to stop, which was near the corporate limits of the city of Lawrence; that the Rock Island train pulled up there as if to pass the Union Pacific train, which was not accomplished. As to what interval of time in fact elapsed between the leaving the station at Lawrence of these two trains it is impossible to determine from this evidence. The rules prescribed by the Union Pacific Railway Company declare exactly how these trains should leave the station; that no train should leave a station until it has permission or direction from the train dispatcher or operator at that place. Where a party undertakes to recover judgment against another, to take the property of one and appropriate it to his use, upon the ground of an imputed negligent act, the evidence ought to be so direct and tangible as to satisfy the conscience of both court and jury that a case is made out.

And, even if it could be held that there is sufficient evidence to go to the jury to determine the time within which the train in question did leave the Lawrence station, the next question which confronts the court and jury is, was there any real connection between the time of the departure of the Rock Island train from Lawrence and the accident in question? No recovery can be predicated upon an imputed negligent act unless such act contributes directly to the injury. The whole drift of the plaintiff's testimony in this respect, assisted by the employes, agents, and lawyers of the Union Pacific Railway Company, being directed to show that after passing beyond Lawrence, knowing that the Union Pacific train was in advance of the Rock Island train, and could be readily seen, so that, by the exercise of due care and caution on the part of the Rock Island engineer and servants, the accident could have been prevented, it is quite inconceivable that, under the evidence presented, there was any such connection between the time of leaving Lawrence station and the collision to warrant the conclusion that the failure of the Union Pacific Company's agents at Lawrence to restrain the Rock Island train there for 10 minutes contributed directly or even remotely to the accident. Therefore, to maintain this action, it must be held under such a petition, on general principles of law, that the Union Pacific Company is liable for damages resulting from injury to one of its own employes by reason of the negligent act of the Rock Island Company while running its train over the track of the Union Pacific Company.

Counsel for the latter company direct the attention of the court to the decisions of the court of appeals of Texas and of the supreme court of Indiana which hold, in effect, that the company in whose service the employe is, the employer himself being free from negligence contributing to the injury, is not liable for the injury resulting from the wrongful act of a third party. The argument of these courts is that the liability, as in the case of the Union Pacific Company to its own employes, must spring either from a contractual relation or from some obligation which the law, on principles of public policy, imposes. It being the duty of the employer to furnish a reasonably safe place for his employes to work in, to furnish suitable and reasonably safe implements and instruments with which to work, and keep the machinery in reasonably safe condition, so as not to expose the employe to unnecessary danger, when it has done this it has performed its full duty under the law to its own employe. Therefore, they say that where the master has not been guilty of any negligence himself which contributes directly to the injury, and the injury comes to the employe outside of any act of the employer, beyond the control of the immediate master, by some vis major, both...