Chicago G. W. Ry. Co. v. Healy

• Decision Date: 21 March 1898
• Docket Number: 891.
• Citation: 86 F. 245
• Parties: CHICAGO G.W. RY. CO. v. HEALY.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 245

CHICAGO G.W. RY. CO. v. HEALY.

No. 891.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

A. B Cummins, for plaintiff in error.

S. P Huston (J. P. Flick, on brief), for defendant in error.

Before BREWER, Circuit Justice, SANBORN, Circuit Judge, and RINER District Judge.

RINER District Judge.

This is an action brought by Nellie Healy, as administratrix of the estate of John J. Healy, deceased, against the Chicago Great Western Railway Company, to recover damages for the death of said John J. Healy, which she alleges was caused by the negligence of the railway company. The case was commenced in the state court, and removed by the plaintiff in error to the circuit court for the Southern district of Iowa. In her petition the plaintiff, in substance, alleged that she was the duly appointed, qualified, and acting administratrix of the estate of the said John J. Healy, deceased; that the defendant, at the time of the injury complained of, was a corporation duly incorporated and organized under and by virtue of the laws of the state of Illinois, as a railroad company, and was operating a line of railway, from the city of Des Moines, in the state of Iowa, to the city of St. Joseph, in the state of Missouri; that in the state of Iowa, on the line of defendant's road, and forming a part of the road, there was a long and high bridge, spanning a water course; that this bridge was negligently and defectively constructed by the defendant, and by the defendant in that condition negligently and carelessly maintained: that on the 6th day of August, 1894, and long prior thereto, the defendant, its agents and servants, had negligently permitted the material composing a part of the bridge to become and remain rotten, unsound, and out of repair; that the bridge was unsafe and dangerous for trains to pass over. It was further alleged that John J. Healy was in the employ of the defendant company as a freight conductor; that on the 6th of August, 1894, he was engaged in running a freight train for the defendant between the city of St. Joseph, Mo., and the city of Des Moines, Iowa; that while his train was passing over the bridge described in the petition, although he was exercising due care and caution on his part, it gave way, wrecking the train, and injuring Healy to such an extent that he died as a result of his injuries. The answer admitted that the defendant was a corporation organized under the laws of the state of Illinois, and was at the time alleged in the petition, and at the time the answer was filed, engaged in operating a line of railway in the state of Illinois, and through the state of Iowa, and from the city of Des Moines, in the state of Iowa, to the city of St. Joseph, in the state of Missouri; that at the time alleged in the petition John J. Healy, deceased, was in the employ of the defendant as a freight conductor, and engaged in running a freight train over its road between the cities of Des Moines and St. Joseph; and that at or about the time alleged in the petition said John J. Healy met with an accident which caused his death,-- concluding as follows: 'The defendant denies each and every other allegation in said petition contained. ' There was a trial; verdict and judgment for the plaintiff in the sum of $6,000.

At the trial it was admitted that the plaintiff below was the administratrix of the estate of John J. Healy, deceased, that she was a citizen of the state of Iowa, and that the defendant, was a corporation organized under the laws of the state of Illinois. The following facts were established by the evidence: At the time mentioned in the pleadings the plaintiff in error owned and operated a line of railroad between the city of Des Moines, in the state of Iowa, and the city of St. Joseph, in the state of Missouri. On the line of, and forming a part of, the railroad, between the places just mentioned, and within the state of Iowa, there was a wooden bridge, known as a 'pile bridge,' estimated by some of the witnesses to be about 252 feet long, crossing a deep ravine. In the construction of this bridge, rows of piling, 15 feet apart, were driven into the ground across the course of the road. Upon these pilings, caps were placed; upon these caps, stringers running lengthwise of the bridge were laid; and upon these stringers the cross-ties and rails were placed. The bridge was first constructed in 1887, and, as originally constructed, the pilings, caps, strings, and sway braces were of white pine lumber. In 1893, about a year before this accident, the bridge was reconstructed in part by putting in oak pilings, new caps, and new sway braces, using the old stringers. On the 6th of August, 1894, John J. Healy, the husband of the defendant in error, was in the service of the plaintiff in error as a freight conductor in charge of a train consisting of an engine, tender, 14 loaded freight cars, and a caboose, going north. That his run was from St. Joseph, Mo., to Des Moines, Iowa. That when his train was upon the bridge in question the bridge fell, injuring Healy to such an extent that he died within an hour from the time of the accident. The track, for a distance of about three-quarters of a mile south of the bridge, was straight, with a slight down grade towards the bridge. The steam was shut off by the engineer some distance before reaching the bridge, and the train was running by its own gravity, without jar perceptible to the train crew, until it was on the bridge, when there was a sudden jerk felt, and the bridge, with the exception of 40 or 50 feet of the north end, fell. In addition to the foregoing facts, which were not disputed, the plaintiff offered testimony tending to prove that the stringers of the bridge, where they rested on the caps, were badly rotted; that the ends of some were entirely rotted off, other largely so, and all more or less decayed and unsound. The testimony on behalf of the defendant tended to prove that there was a general inspection of this bridge by the superintendent of bridges in June, 1894, about two months prior to the accident, and that it was seen by the division bridge foreman frequently between the time it was rebuilt, in 1893, and the date of the accident; that the stringers at the date of the accident were not decayed. It also offered testimony tending to show that one of the cars in Healy's train had become derailed about 45 feet from the south end of the bridge; that the trucks of that car, falling upon the ties with the force given them by the moving train, tore up and destroyed the bridge.

Three assignments of error are insisted upon by the plaintiff in error as grounds for reversing the judgment:

First. 'The court erred in overruling the defendant's motion, made at the close of the testimony offered by the plaintiff in chief, to instruct the jury to return a verdict for the defendant. ' Second. 'The court erred in refusing to give to the jury at the close of the testimony the instruction asked by the defendant, directing the jury to return a verdict for the defendant; said instruction being as follows: 'You are instructed to return a verdict for the defendant.' ' Third. 'The court erred in that part of its instructions to the jury relating to the measure of damages, in this: That there was no rule or criterion stated in said instructions whereby the jury could be guided in its deliberations upon that subject. The court directed the jury that the amount to be recovered was compensation for the loss suffered by the estate of the deceased, but it did not give any instruction that would guide the jury in determining how to measure or compute such loss.'

In reference to the first assignment of error, but little need be said. Upon the conclusion of the plaintiff's testimony, the defendant moved the court to direct a verdict in its favor. This motion was overruled by the court, and the defendant excepted. It did not, however, stand upon its exception, but proceeded to introduce testimony in its own behalf. It thereby waived the exception. Bogk v Gassert, 149 U.S. 17, 13 Sup.Ct. 738; Railway Co. v. Daniels, 152 U.S. 684, 14 Sup.Ct. 756; Railway Co. v. Hawthorne, 144 U.S....