Chicago Great Western R. Co. v. McCormick

• Decision Date: 28 October 1912
• Docket Number: 3,729.
• Citation: 200 F. 375
• Parties: CHICAGO GREAT WESTERN R. CO. v. McCORMICK.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F. 375

CHICAGO GREAT WESTERN R. CO. v. McCORMICK.

No. 3,729.

United States Court of Appeals, Eighth Circuit.

October 28, 1912

Fred P Carr, of Des Moines, Iowa (George H. Carr, of Des Moines Iowa, on the brief), for plaintiff in error.

Robert Healy, of Ft. Dodge, Iowa (Healy & Healy, of Ft. Dodge, Iowa and M. F. Healy, of Storm Lake, Iowa, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

John McCormick, an engineer in the service of the Chicago Great Western Railroad Company, was killed by the derailment of his engine at a point in Iowa where section men engaged in repairing the track had removed a rail. His wife, as administratrix, claiming that no warning of the broken track was given him, sued the company and obtained judgment.

Complaint is made by the company that after the jury had been impaneled the trial court allowed the plaintiff to amend her petition by averring that her appointment as administratrix was by a local court of a different county from that first stated, thereby in effect, as claimed, permitting the substitution of a new plaintiff. There was no error in this. The giving of leave to amend was well within the discretion of the trial court. There are a multitude of cases upholding the action of trial courts, where the changes in the character and positions of the parties as stated in their pleadings were as radical as that questioned here.

There was evidence that McCormick's train was flagged by one of the section crew sent back for the purpose; also evidence to the contrary. But as the verdict was for the plaintiff we must assume no warning was given either by flag or by torpedoes on the rails, and that the company was negligent in that respect. We therefore turn to the defense of contributory negligence. It was admitted in plaintiff's petition that when three-fourths of a mile away McCormick saw a hand car upon the track and the crowd of section men near by. He then had ample time to stop the train, but he continued at high speed until too late to stop and avoid derailment. The effect, as a warning, of the presence of the hand car and the section men upon and about the track, was submitted to the jury, with instructions respecting the duty of the engineer. The trial court charged the jury that the engineer had a right to assume the track was in a reasonably safe condition for the passage of his train, that it was customary for men to work on and along a track kept open for traffic, and that an engineer on an approaching train is not required to slacken speed or stop until he knows or has reasonable grounds for believing they are not going to remove their hand cars, tools, and implements and get off the track-- that 'after such knowledge, or after reasonable grounds to so believe, then if he fails to exercise care to stop it, he may be chargeable with negligence. ' We think this is a correct statement of the law applicable to the case. If the man sent back by the section foreman failed to use the flag or torpedoes, the engineer might very properly have assumed the track was safe, though he saw the hand car and the men in the distance. Common experience in railroading would not have led him to suspect a broken track from their presence. Warnings of unsafety are given in other ways. It is not the custom to take the mere presence of men and implements as notice of danger. The efficient operation of railroads forbids it. The hand car and the men on and about the track only became a warning upon which the engineer was obliged to act when it became reasonably apparent the track would not be cleared for the...