Chicago, M. & St. P. Ry. Co. v. Irving
| Citation | 234 F. 562 |
| Decision Date | 07 August 1916 |
| Docket Number | 2664. |
| Parties | CHICAGO, M. & ST. P. RY. CO. v. IRVING. [1] |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
George W. Korte, of Seattle, Wash., and Cullen, Lee & Matthews, of Spokane, Wash., for plaintiff in error.
Danson Williams & Danson, of Spokane, Wash., for defendant in error.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
Sarah J. Irving, defendant in error here (we will call her plaintiff), brought action for damages for injuries against the Chicago, Milwaukee & St. Paul Railway Company, plaintiff in error here (called defendant). She was a passenger upon a regular train operated by the appellant company between Chicago and Seattle, and as the train was leaving Chicago and while running between Western avenue and Pacific junction in that city, the engine and part of the train were derailed. The railroad company pleaded, in substance, that it was not responsible for the derailment of its train, but that it was caused by the removal of spikes and angle bars and the displacement of the rail at the point of derailment, and was the work of trespassers or others unknown to it who designed to wreck the train.
Reducing what the testimony tended to show to the briefest possible form, the substance of it may be stated as follows:
Plaintiff said that she left Chicago at 10:15 in the night of March 21 1914; that in 15 or 20 minutes, as they were leaving the city of Chicago, and while she was washing in a toilet room of the tourist car, the train was suddenly thrown backwards and forwards, and she was hurt; that when it stopped, she followed other passengers who left the train, and that she saw the engine lying over on the side of the track; that her train was on the outside track, and that she noticed a rail standing up off the ground and turned around; that part of the track was torn out behind the engine, and the front end of the car in which she was was off the rails.
For the defendant the section foreman testified that at the point where the train was derailed there were four tracks; that his duty was to keep the four about the place of the wreck in repair, tighten the bolts, keep rails straight, and do work like that; that he had three men working under him; that he inspected the four tracks every morning; that he walked and observed the tracks the morning of the accident to see if spikes were out or any bolts broken, and found everything on track 1, where the derailment occurred, in good condition; that the rails were bolted together with angle bars 24 inches long, with nuts and spikes all in place, and that there was bond wire for the signals; that he arrived at the wreck about an hour and a half after it occurred; that at the place of the accident the tracks have a curve, with some elevation to one rail; that the track, which is elevated some 14 feet, is fenced on both sides in that vicinity, but that by climbing up there was a way to get from the street to the track elevation; that in his inspection, which occupied from an hour and a half to two hours, he did not look at every rail end, but that he walked in the middle of the track and looked at every joint, and could tell if a spike was out or anything wrong; and that after the accident he found the engine lying across the tracks, headed west, and next to the engine the baggage car, down the bank.
The trainmaster of the railroad company said he first saw the situation about an hour after the derailment; that he observed that one rail had been disjointed from another, and that both angle bars were missing, the outside spikes on the south rail for some distance back were missing, and that the receiving rail was out of line about 2 inches, the end of it showing deep marks where it had been struck by the flanges of the forward wheels of the engine; that he found among the weeds 3 or 4 feet away from the joint some angle bars, bolts, and spikes, and that the next morning he found a clawbar and a track wrench concealed on the abutment of the viaduct over a nearby street about a block away; that he found the articles described as having been found in the weeds on the east side of the east rail of track No. 1, almost directly opposite the point of the derailment, or where the rails were disjointed; that the bolts he found did not show any evidence of having been broken off.
The superintendent of terminals for the railroad company, who arrived at the wreck 30 or 35 minutes after it occurred, says that he found the engine crossways of the four main tracks and the two day coaches and the forward truck of the tourist car off the track, the balance of the train being still on the rails; that he found where the joints had been opened and an angle bar placed between those, or in the opening; and that the company had no track walkers at night.
The assistant superintendent of terminals for the company said that he arrived 40 minutes after the wreck, and noticed that the angle bars from the receiving rail were gone and the spikes were out of the ties on the inside of the receiving rail for six or eight ties; that the receiving rail was moved over so that the flange of the engine wheel had struck close to the outer edge of the ball of the rail, and that a large number of trains, which witness described in detail, had gone safely over the track during the five hours preceding the time that the train in question was derailed; and that the bonding wires were not broken except where the rails were bent up after the accident.
The roadmaster for the defendant company said that he arrived after the wreck; that the curve where the accident happened was a slight one, a one-degree curve; that from the hind end of a caboose he had observed the track the evening of the derailment; and that it was in good condition. This witness explained to the jury how the track was laid and spiked and how the bonding wire was attached to the receiving rail. Witness explained that the train ran on a track above the street, the track being erected on concrete abutments about 14 feet above the street, and that the bottom of the bridge is iron plate, with a girder for the rails, with steel girders between each track and on the outside of each track. He explained angle bars and their function, and said that he observed that five spikes had been removed on the inner rail, on the inner side of the receiving rail; that spikes were lying about there; that from marks on the tie he thought that a bar had been used to get around the spike near the joint, and that from the position in which the rails were he thought the flange of the engine wheel had struck the receiving rail about 1 3/4 inches from one of the sides; that when the wheel hit, the engine jumped up and got outside and crossed the rail and bent it; that the outer rail, where the rail was found open, was all right; that he found another place where bolts had been taken out from the rail joint farther south on the same track, 1,000 feet east of where the accident occurred; that there was no defect previously existing in the track or ties at the point of derailment, and nothing to indicate that there was any defect which might have caused the wreck, other than the opening of the rails; that the bond wires were not broken, and if they had been, the signal system would have been put at danger; that the night was raw, with a little snow falling; that there are lights in the subway under the tracks.
A special agent of the defendant company said that he observed nothing wrong with the track when he went along it in the evening at about 6 or 6:15 o'clock; that he was the first man at the scene of the wreck after it occurred; that he observed one rail was shoved in and a piece of the angle bar was lying on the side of the outer rail on No. 1 track, the east rail; that upon the receiving rail there were some spikes 'pulled' and the bolts taken out, and that he found bolts and spikes and angle bars at the foot of the embankment, and that the spikes and one of the angle bars found there were not broken; that he found these things about 30 feet away in the weeds; that the nuts were off the bolts; that the next morning he found a small track wrench and crowbar about 200 feet on the prairie opposite the point away from the foot of the embankment.
The engineer of the wrecked train said that he reached the point where the train was derailed about 10:30 o'clock; that he had observed nothing before the occurrence; that he was running about 35 miles an hour; that the first thing he knew he was on the ground, as though he had been right off the end of the rail; and that he did not look at the track ahead of him as he went along.
At the close of all of the evidence in the case, the defendant moved for a directed verdict for the reason that the evidence was insufficient to support any verdict, and that there was no evidence of negligence on the part of the railroad company. The court overruled the motion, and instructed the jury in part as follows:
'Taking into consideration all of the testimony introduced before you, and presumptions of fact to which I have referred, if you can say that you are satisfied from a preponderance of the testimony here that the defendant company was negligent, plaintiff is entitled to recover; but, if the jury is not satisfied of the fact by the preponderance of the testimony, your verdict must be for the defendant.'
The jury found for the plaintiff. Judgment was entered, and the railroad company sued out writ of error.
Appellant concedes that the case was one for the application of the doctrine of res ipsa loquitur, but contends that the plaintiff below, although she had the legal right to compel the defendant to assume the burden of explaining the cause of the accident, could not rely...
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