Baltimore & O.R. Co. v. Burris

• Decision Date: 11 November 1901
• Docket Number: 895.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: BALTIMORE & O.R. CO. v. BURRIS.

111 F. 882

BALTIMORE & O.R. CO. v. BURRIS.

No. 895.

United States Court of Appeals, Sixth Circuit.

November 11, 1901

J. H Collins, for plaintiff in error.

Ulric Sloane and Thomas E. Steele, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge.

This suit was brought by way of an intervening petition, by Burris, who, while he was the conductor of a freight train in the service of receivers of the railroad company appointed by the court in a case hereinafter mentioned, was severely injured in an accident which happened on the railroad in consequence, as he alleged, of the negligence of the receivers. There was a verdict and judgment for the plaintiff in the sum of $5,000.

When the accident occurred there was pending in the equity side of the court below a suit for the foreclosure of a mortgage, the title of which was the Mercantile Trust Company against the Baltimore & Ohio Railroad Company. Shortly thereafter the court made an order in that case directing the receivers to turn over the railroad property to the company, and to render a report of their receipts and disbursements, etc reserving, among other things, the adjudication and settlement of all claims against the receivers; and it was expressly provided in the order that the company should take the property upon the condition that it should pay off and satisfy all debts and obligations incurred by the receivers and which might be adjudged by the court to be valid charges against the receivers. Subsequently, by permission of the court, Burris filed this, his intervening petition, against the railroad company to recover the damages sustained by him from the injury above mentioned.

By its answer, by a motion for judgment upon the pleadings, and by motion in arrest of judgment, the defendant urged as a defense that the liability, if there was any, rested upon the receivers, and not upon the company, for the reason that the company did not have either the possession or control of the railroad when the injury occurred. The court, referring to the condition which it had imposed by its order putting the company in possession that the latter should become chargeable with the obligations of the receivers, overruled the objection.

Upon the trial testimony was given tending to show the following facts: The freight train of which the plaintiff was conductor left Newark, Ohio, for the East about 7:30 o'clock in the morning, and consisted of an engine and 32 cars, the rear one of which was the caboose. While the train was passing the outer limits of the yard at that station an employe of the company called out to those on board, signifying that there was something wrong about the train. A brakeman heard him but did not understand what the trouble was. He informed the conductor, who was reading over his waybills in the caboose, of what he had heard from the man in the yard about some trouble with the train. The conductor directed him to go forward, and find out what was the cause of the warning. On going over the cars to about the middle of the train, the brakeman discovered that one end of a brake beam upon a car in the train belonging to another company had dropped down, and was dragging upon the track. He returned, and informed the conductor, who thereupon went forward himself, and tried to signal the engineer to stop the train. But he failed to catch the engineer's attention until the train reached and was passing over a bridge, when the car having the dragging brake beam was by it thrown from the tracks upon the trestlework of the bridge, breaking it down, and falling, with it, into the ravine below. The conductor fell with the car, and was badly hurt.

The principal grounds of the defense upon the merits were that-- First, it was, by a rule of the company, made the duty of the conductor to inspect his train before starting, and find out whether it was in order, which duty, it was claimed, he must have neglected, and hence was not entitled to recover; second, that he was guilty of negligence in not going forward himself when he was notified by the brakeman that something was wrong with the train, instead of sending the brakeman. And at the close of the evidence the defendant, upon these grounds, asked for an instruction to the jury that they find a verdict in its favor. This the court refused, and the cause was submitted to the jury under instructions pertinent to the case.

Four objections to the recovery are mainly relied on by counsel for the plaintiff in error:

1. It is objected that the court erred in holding that the action was properly brought against the railroad company notwithstanding the injury happened while the receivers were in possession of and operating the road, and authority is cited in support of the proposition that in such cases the receivers, and not the company, are responsible. The general rule thus stated is not doubted, and has been recognized and applied by this court. Railroad Co. v. Hoechner, 14 C.C.A. 469, 67 F. 456. But here was the further and controlling fact that by the order under which the company had been allowed to resume possession of the road it was charged with, nd by its acceptance of the privilege given it by the court had assumed and agreed to satisfy, all the obligations of the receivers, this among them. This is not an infrequent course in such cases, and it effectually removed the ground for the objection. But it is said the court had no authority to go out of the record of this proceeding, and inform itself, without proof that such an order had been made. But this proceeding was a parcel of the foreclosure case,-- a mere intervention therein,-- and it was competent for the court to take judicial notice of the orders which it had made in the...