Central Trust Co. v. Wabash, St. L. & P. Ry. Co.

• Decision Date: 22 June 1887
• Citation: 31 F. 246
• Court: U.S. District Court — Eastern District of Missouri
• Parties: CENTRAL TRUST CO. OF NEW YORK v. WABASH, ST. L. & P. RY. CO. (Intervening Petition of JUSTUS.)

31 F. 246

CENTRAL TRUST CO. OF NEW YORK v. WABASH, ST. L. & P. RY. CO. (Intervening Petition of JUSTUS.)

United States Circuit Court, E.D. Missouri, Eastern Division.

June 22, 1887

Rassieur & Tiffany, for intervenor.

Geo. S Grover and H. S. Priest, for defendant.

THAYER J., (orally.)

The intervening petition of Richard Justus, in the case of the Central Trust Company against the Wabash, St. Louis, &amp Pacific Railway Company, is a claim for personal injuries. The claim is filed in behalf of a boy about six years old whose foot was crushed in such a way as to necessitate amputation, by a moving freight train on the Wabash Railroad, at the crossing of Gano avenue, in the city of St. Louis, on the third of July last. The intervening petition alleges that the train was moving at an excessive rate of speed; that the bell as it approached the crossing was not sounded; that the train-men (especially the engineer and fireman) failed to keep a vigilant outlook, as the ordinances of the city require. The master has found that the train was moving at an excessive rate of speed, and that the train-men failed to keep such outlook as the ordinances of the city require at such places. He has accordingly recommended an allowance of the claim in the sum of $4,500. Exceptions are taken to the finding of the master as last stated.

I have read all the testimony in the case taken before the master carefully, and while there is a great conflict in the same, as is usual in such cases, yet there is ample testimony in the record to support the finding that the freight train was moving at an unlawful rate of speed, and that the train-men were not exercising such vigilance as the law requires of them in such cases. If the finding of the master was the finding of a jury, the court could not rightfully set the finding aside, and it will not do so in this case.

The master also found that this boy was struck by the cow-catcher of the engine, or by some portion of the engine, and in that way received the injuries complained of. This finding is also objected to. It is insisted that the boy was standing by the side of the track, and that, after the engine passed him, he attempted to seize hold of some part of the train, and clamber onto the train, and in that way his foot was drawn under the wheel, and was crushed. It is sufficient to say that among all the witnesses who testified in the case there was only one witness who...