Chicago, M. & St. P. Ry. Co. v. Lindeman

Decision Date10 March 1906
Docket Number2,257.
Citation143 F. 946
PartiesCHICAGO, M. & ST. P. RY. CO. v. LINDEMAN.
CourtU.S. Court of Appeals — Eighth Circuit

(Syllabus by the Court.)

A custom must be uniform, certain, and known, or so notorious that a person of ordinary prudence, in the exercise of reasonable care, dealing with its subject, would have been aware of it.

The liability for future damages for the wrongful infliction of a personal injury is strictly limited to compensation for such pain and other evil effects as are reasonably certain to result from it. Possible, even probable, future effects are too remote and speculative to form the basis of legal recovery.

Frank Hagerman (H. H. Field and Burton Hanson, on the brief), for plaintiff in error.

W. F Guthrie (L. C. Boyle, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

In the yards of the defendant below at Kansas City, Mo., there was a level platform 15 feet above the ground and 217 feet long and a trestle 293 feet long upon a grade of 5 3/10 per cent which extended from the platform to the ground. On this platform and trestle there was a railroad which extended into the yards and was connected with other railroads. A short distance from the foot of the incline there was a switch, by means of which an engine or a car could be turned from the railroad track which extended from the platform past the switch into the yard. The platform and trestle were constructed and used for the purpose of unloading coal from cars into chutes provided for that purpose. Two empty coal cars stood upon the platform which the yardmaster had directed the plaintiff below and three of his fellow servants to 'drop' down from the platform into the yard. Empty cars were 'dropped' in this way: An engine was coupled to the cars which drew them out over the summit of the incline to such an extent that they could be held there by their brakes, but would, when the brakes were released, be drawn down the incline and sent along the track into the yard by gravity. When cars had been drawn to the proper place, the engine was uncoupled, moved down the incline, and sent upon another tract by means of the switch, and as soon as the engine had passed the switch was closed, notice was given to the field brakeman upon the cars who released the brakes, and the cars were then dropped down the incline and passed out into the yard.

On May 23, 1903, Gage, the engineer, Smith, a switchman, whose place was upon the engine, and the plaintiff, whose station was on the top of the cars, undertook to drop two cars into the yard. The engine was coupled to them, drew them upon the summit of the incline stopped and was uncoupled, the plaintiff set one brake on the leading car, and notified the switchman, Smith, upon the engine to take it away. The engineer and Smith started the engine slowly down the incline, but the brake upon the car did not hold them, and they followed the engine. As soon as Smith saw that the cars were coming he signaled to the engineer to stop, and he did so. Meanwhile the plaintiff, who had been standing on the top of the leading car, had started toward the rear car to set another brake, and as he was stepping from one car to the other they struck the engine and he was thrown between the cars by the impact and injured. He sought to recover damages of the company for the negligence of Gage and Smith under the statute of Missouri which charges railroad companies with liability for the carelessness of fellow servants. His principal charge was that they violated a custom of stopping the engine after it was uncoupled and had moved from two to four feet away from the cars and holding it there until the question whether or not the brakes would hold the cars was determined by actual trial. The defendant denied the existence of this alleged custom, and the evidence upon this issue was this: The plaintiff testified that he had assisted in dropping cars from the platform 15 or 20 times and that such a custom existed. Metler, who had been foreman of the switching crew in the yard for many years, testified in this way:

'Q. Who cuts the engine off from the cars? A. The man following the engine. The engine slacks away, and he sits in sight there.
'Q. Who? A. The man following the engine.
'Q. What does he sit there for? A. Watching the cars.
'Q. What does the engine do during this time? A. It slacks ahead and stops.
'How far does it slack ahead? A. Three or four feet.
'Q. I will get you to state, whether this thing is done the same way day and night-- or different. A. The same way day and night.'

On the other hand, Smith, the switchman, testified that he probably had taken cars down this incline 50 or 75 times, that the engine never stopped after it was uncoupled at any time when he was assisting, but that it went on slowly down the incline unless the cars started. Gage, the engineer, testified that he had taken cars down from this platform four or five times and had seen them dropped frequently, that every time he had ever seen it done the engine was uncoupled and then taken slowly down the incline, and that he moved it in the usual way at the time of the accident. Fitzgerald, another engineer, testified that he had worked in the yards six or seven years, that he estimated that he had taken cars down from that platform 2,000 or 3,000 times, and that he never stopped his engine after uncoupling, and never knew it to be stopped unless the brakes on the cars failed to hold. Williams, a foreman of a switching crew, who had worked in this yard 12 years and had assisted to take cars down from this platform probably 500 times,...

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