Bryant v. Chicago, St. P., M. & O. Ry. Co., 175.

• Decision Date: 06 February 1893
• Docket Number: 175.
• Citation: 53 F. 997
• Parties: BRYANT v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F. 997

BRYANT v. CHICAGO, ST. P., M. & O. RY. CO.

No. 175.

United States Court of Appeals, Eighth Circuit.

February 6, 1893

Statement by Sanborn, Circuit Judge:

The plaintiff in error brought an action for damages for the negligence of the defendant in error, causing the death of James Davidson. The complaint alleged that the defendant was a common carrier between the Union Depot in St. Paul, and a point near its railroad shops, about a mile and a half westerly from the depot, and that while in the course of his transportation by the defendant, as a passenger between these points, the deceased was killed by its negligence. The answer admitted that the defendant was a common carrier, but denied that at the time of the accident it was a carrier of passengers between the points named, and denied that the deceased was a passenger at that time on any car operated by it. There was evidence that the accident was caused by the negligence of the defendant's employes in the management of certain freight cars that stood on its passenger track with which the train on which the deceased was riding collided. At the close of the plaintiff's evidence the court instructed the jury to return a verdict for the defendant, on the ground that there was no evidence tending to show that the relation of passenger and carrier existed between the deceased and the defendant at the time of the accident, and it is this instruction of which complaint is now made. The evidence discloses the following facts Defendant's railroad yard extended from the Union Depot in St. Paul westerly about two miles to its shops, and the two points between which the complaint alleges the deceased was being carried at the time of the accident are within this yard. One Flannagan, who was killed in the accident, was the defendant's general yard master. His duties, as such were to instruct the switchmen what to do, to receive orders from the shipping agents, and to tell the foremen of the crews what they should do. He acted as conductor upon, and had charge of, the train on which the accident occurred, and it occurred within the limits of the yard. The train consisted of a switch engine and one passenger coach, which belonged to the defendant. The engine was operated by one of its engineers,-- who was paid by it, for extra hours, for running this train on the evening of the accident,--and by one of defendant's firemen, under Flannagan's orders. On the evening of the accident this engineer, by the direction of Flannagan, went to the shops of the company, and, with the switch engine, drew the passenger coach, filled with employes of the defendant, from the shops to the Union Depot, where they held a meeting. The deceased rode from a point near the shops to the depot in this coach. After the meeting, and at about 10 o'clock in the evening, this coach stood opposite the platform at the depot on the out-going, west-bound track of the defendant, in front of this switch engine. Many persons who came to the depot in the car boarded it, and among others the deceased. Some were invited to do so by Flannagan, but there was no evidence that the deceased received any special invitation to ride upon it. He seated himself in the coach. Flannagan stood on the step, at its forward end, and signalled the engineer to push the train out towards the shops. He did so, and after stopping at an intermediate station, and starting again, in obedience to Flannagan's signals, the train collided with the freight cars on the track, and so injured the plaintiff's intestate that he died. There was no evidence that the deceased, or any other person in this coach, paid any fare.

M. D. Munn and F. B. Kellogg, (Munn, Boyeson & Thygeson, C. K. Davis, and C. A. Severance, on the brief,) for plaintiff in error.

Thomas Wilson, (S. L. Perrin, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge, (after stating the facts.)

If the defendant...