Chicago G.W. Ry. Co. v. Price

• Decision Date: 09 October 1899
• Docket Number: 1,162.
• Citation: 97 F. 423
• Parties: CHICAGO G.W. RY. CO. v. PRICE.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 423

CHICAGO G.W. RY. CO. v. PRICE.

No. 1,162.

United States Court of Appeals, Eighth Circuit.

October 9, 1899

[Copyrighted Material Omitted]

On the night of May 4, 1896, L. C. Price was a conductor in charge of a freight train of the Chicago Great Western Railway Company which was running from Chicago, in the state of Illinois, to Dubuque, in the state of Iowa. The train consisted of 22 loaded cars. Sycamore is a city in Illinois on this railroad, about 57 miles west of Chicago. There is a hill about two miles east of this city, so that the railroad is on a descending grade nearly all the way from the top of this hill to the water tank at Sycamore. As the train came over or down this hill and into Sycamore, it parted, and when the engine and the forward section of the train stopped at the water tank in Sycamore the rear section crashed into it. There were some large dimension stones on the rear car of the forward section when the collision occurred which perforated a tank in the forward end of the rear section, and gasoline or some other inflammable liquid poured forth from the opening. On a spur track opposite this tank, and about eight feet south of it, was a dining car. The liquid flowed out upon the ground, ran across the spur track under the dining car, and spread over the ground on the south side of it. When the collision occurred, the conductor, Price, was on the caboose at the rear end of the train. He took his lighted lantern, and went forward to attend to the train. The inflammable fluid took fire, there was an explosion, and when the fire was extinguished the dead body of Price was found lying on the ground south of the dining car. Annie M. Price the administratrix of the conductor's estate, and the defendant in error, brought this action for his death in behalf of his widow and next of kin, pursuant to the provisions of the statutes of Illinois, which permit the maintenance of such actions when death has resulted from the wrongful act or omission of a party. She alleged in her complaint that the death of Price was caused by the failure of the plaintiff in error, the Chicago Great Western Railway Company, to use ordinary care to keep its roadbed and railroad track in proper condition, and by its negligence in other respects. The company denied these allegations of the complaint, and averred that the death of Price was the result of his own carelessness. The case was tried, and a verdict was returned and a judgment was rendered against the railway company for $3,500. The writ of error challenges this judgment on various grounds, which will be considered in the opinion.

D. J. Lenehan and D. E. Lyon (D. W. Lawler, on the brief), for plaintiff in error.

J. W. Jamison (William Smyth, Henry Rickel, and E. H.Crocker, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

After several witnesses had testified that the roadbed and the railroad track of the plaintiff in error from the top of the hill east of Sycamore to the water tank in that city, where the collision occurred, were in a poor condition; that some of the ties were rotten, and that many of the spikes were loose or lost; and after Charles A. Field had testified that he was a locomotive engineer, that he had been in the employment of the plaintiff in error for 11 years, that he was running a suburban train from Chicago to Sycamore at and before the time of the accident, that he knew the condition of the road from the top of the hill to the water tank, that it was in bad condition, and would sway a train as it passed over it,-- the trial court permitted him to testify, over the objection of the company, that the rough and uneven condition of the track was liable to throw a pin out, and thus to part a train, and this ruling is assigned as error. This declaration was not the statement of any fact, but the communication of the opinion of the witness as to the effect of the roughness of the road. The rule undoubtedly is that a witness must state facts, and not opinions, but there is an exception which arises out of the necessity of the case that is as firmly established and as well known as the rule. It is that the opinions of witnesses possessing peculiar skill or knowledge of the subject-matter may be received in evidence whenever the facts are such that inexperienced persons are likely to prove incapable of forming a correct judgment without such assistance. The trial court was of the opinion that the testimony of this witness fell under the exception to the rule, and we are not convinced that there was any error in this view. The line of demarcation between competent and incompetent expert testimony is not always clear and definite, and judgments ought not to be reversed on account of the reception or rejection of such testimony unless there was a clear violation of the rule. It is not probable that the farmers, mechanics, and business men who composed the jury in this case were as capable of forming a judgment upon the effect of a rough railroad upon the links and pins with which the cars of a freight train are fastened together as a locomotive engineer who had been operating a railroad train for years. Motey v. Granite Co. 36 U.S.App. 682, 689, 20 C.C.A. 366, 370, 371, and 74 F. 155, 159; Railway Co. v. Edwards, 49 U.S.App. 52, 56, 24 C.C.A. 300, 302, and 78 F. 745, 747; Fireman's Ins. Co. v. J. H. Mohlman Co., 62 U.S.App. 287, 291, 33 C.C.A. 347, 349, and 91 F. 85, 87; Clifford v. Richardson, 18 Vt. 620, 627. There were like objections to similar testimony of other witnesses, but for the reasons stated above we have reached the conclusion that they were properly overruled, and that the evidence of these witnesses was properly received.

The theory of the defendant in error at the trial was that the fire was communicated to the flowing liquid, and that the explosion was caused, by fire from the dining car which stood on the spur track about eight feet south from the tank from which the inflammable fluid escaped. The theory of the plaintiff in error was that the fire was set to the liquid by Price's lighted lantern, and that it was his negligence in approaching the fluid with this light in his lantern that caused the fatal result. In order to prove that the theory of the defendant in error was unfounded, the railroad company introduced evidence to the effect that no fire and no coals were taken or escaped from the dining car. The plaintiff in error complains that the court subsequently permitted the administratrix to prove by one Hibbard, who was a locomotive engineer, that he had pulled tanks of gasoline with his engine, that brakemen with lighted lanterns had inspected leaking tanks, and that he never knew of a case in which the light from a brakeman's lantern caused the liquid to take fire. The objection to this testimony was that it was not proper testimony in rebuttal. But the record shows that the testimony of another witness to the same effect had already been received in rebuttal, without challenge, before this objection was presented, and that this testimony was not contradicted; so that no prejudice could have resulted from the cumulative evidence of the subsequent witness. If the admission of his testimony was error, it was error without prejudice, and no ground for reversal.

It is assigned as error that witnesses were permitted to testify in rebuttal that they saw a danger signal-- a red flag-- between Sycamore and the top of the hill a month or more before the accident occurred. But the entire question of the condition of the railroad at this place, of the repairs that had been made upon it during many months prior to the accident, and of the daily work of the section men upon it was before the jury, and the testimony upon every phase of it was in conflict. This testimony would have been competent if it had been introduced in chief, and in this state of the case a trial court has much discretion in the admission of rebutting testimony. It was guilty of no such abuse of this discretion here as would warrant a reversal of this judgment.

There are other assignments of error regarding the admission and rejection of evidence. They have all been carefully examined, and found to be untenable. They are either disposed of by the views which we have already expressed, or they are of insufficient importance to warrant their statement and discussion.

The chief reliance of counsel for the plaintiff in error is not upon their objections to the testimony. It is upon their contention that the court below should have instructed the jury to return a verdict in favor of the railway company. They insist that there were many questions presented by the evidence and submitted to the jury which it was error for the court to refuse to decide, and that, if it had decided any one of them, the logical and unavoidable result would have been a peremptory instruction in favor of the company. The assignments of error which refer to this matter are numerous and voluminous. They assail various portions of the charge of the court, its refusal to grant numerous requests for instructions, and its failure to peremptorily instruct the jury in favor of the company. But, when they are carefully analyzed, they all come to this: that for one reason or another the court erred because it did not direct a verdict for the railway company. Before entering upon a discussion of the questions which these assignments present, it is well to call to mind the established rules by which they must be determined. It is conceded that at the close of the evidence there is always a preliminary question for the judge before the case can be properly submitted to the jury, and that is whether or...