Chicago, M. & St. P. Ry. Co. v. Carpenter, 178.

• Decision Date: 15 May 1893
• Docket Number: 178.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. CARPENTER.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 451

CHICAGO, M. & ST. P. RY. CO. v. CARPENTER.

No. 178.

United States Court of Appeals, Eighth Circuit.

May 15, 1893

Statement by THAYER, District Judge:

This case was submitted to the jury on testimony which tended to establish, and practically did establish, the following state of facts: Carpenter, the defendant in error, is a farmer and stock dealer. On December 3, 1889, he started from Marion Iowa, for Chicago, Ill., in charge of two car loads of live stock, over the railroad of the plaintiff in error. He was accompanied by another stock dealer and acquaintance of his named Paul, who also had two car loads of live stock. The four cars of stock in question were placed at the forward end of the train, next to the engine. The train contained 23 cars, including the caboose. At a station called Elwood the train stopped to take coal and water, at about 3 o'clock P. M., and, as is customary with persons in charge of stock Carpenter went forward from the caboose, where he had been riding, to examine the stock. Before he had completed the examination of the four cars, the engine gave the signal for starting, and pulled out on a slight down grade. Finding that it would be impossible to go back by the side of the train and to board the caboose, owing to the speed it would attain he climbed upon one of the forward cars, intending to wark back to the caboose along the running board on the roof of the cars, as brakemen are in the habit of doing. On reaching the top of the car on which he had climbed, he stopped for a few moments to rest, and then started back. He had walked some distance from the engine on the running board, when he was struck by an overhead bridge, was rendered unconscious, and was severely injured. The bridge was 2 3/4 miles east of Elwood station, and the train, after it pulled out, moved at the rate of 17 or 18 miles per hour, and would cover the intervening space in 8 or 9 minutes. To one standing on the roof of a car and looking in that direction, the bridge was visible from the west for three-quarters of a mile. At the time of the accident Carpenter was an active man, 37 years old, and was well accustomed to walking on the tops of cars while they were in motion. He was 5 feet 8 or 9 inches in height. The car on which he was walking when struck was 12 feet and 9 inches high. The lowest portion of the overhead bridge, over the center of the track, was 17 feet and 10 inches above the tops of the rails. It was admitted by the defendant in error that after he started to walk back to the caboose, he did not turn to look in the direction that the train was moving, but he denied having any knowledge of the bridge, or of its dangerous character. There was also considerable testimony in the case, that was admitted over the objection of the plaintiff in error, which tended to show that it is customary among stockmen when traveling on freight trains in charge of stock to go forward and examine their stock when the train halts at stations, and to go back to the caboose over the tops of the cars, if, in consequence of the sudden starting of the train or other cause, they are unable to board the caboose in any other manner; and that railway companies are in the habit of permitting such practice on the part of persons on their trains who have charge of live stock. There was a verdict against the plaintiff in error in the sum of $4,250, whereupon it sued out a writ of error.

Charles B. Keeler, (Burton Hanson, on the brief,) for plaintiff in error.

Henry Rickel, (Charles A. Clark and E. H. Crocker, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge, (after stating the facts.)

It was correctly stated by counsel for the plaintiff in error on the argument of the case, that the most important and the underlying question presented by the record, is whether, as a matter of law, the defendant in error was guilty of contributory negligence, either in getting on the top of the train or in walking thereon towards the caboose without turning to look in the opposite direction for overhead bridges or other obstructions. If it is conceded that he had the right, under the circumstances disclosed by the evidence, and as the jury have found, to get on the top of the train, and that he was not guilty of culpable negligence in so doing, then we have no doubt that the railway company owed him a duty with respect to its overhead bridges which the evidence tended to show had not been performed or discharged. The weight of judicial opinion, as well as of sound reason, is in favor of the view, that railway companies are under an obligation to all persons who have a right to be on the top of their trains in the discharge of any duty, to so construct their overhead bridges or other overhanging structures adjacent to their tracks that they will not expose such persons to unnecessary risks or to perils that can easily and without any great outlay be avoided. If, for any reason, structures of the kind last mentioned are maintained, which do expose persons who have a right to be on the top of moving freight trains to unusual risks, (such as the liability to be knocked off,) then we think that the exercise of ordinary care requires of a company which maintains such a structure to give some warning, either verbally or by whip lashes, to all of those persons who, in the discharge of their duties, are liable to sustain injury in consequence of such structures. Railroad Co. v. Irwin, (Kan.) 16 P. 146; Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. Rep. 627; Railroad Co. v. Johnson, 116 Ill. 206, 4 N. E. Rep. 381; Railroad Co. v. Wright, (Ind. Sup.) 17 N. E. Rep. 584; Clark v. Railroad Co., 28 Minn. 128, 130, 9 N.W. 581; Railroad Co. v. Welch, 52 Ill. 183; Flanders v. Railway Co., (Minn.) 53 N.W. 544; Beach, Contrib. Neg. 364.

There are some courts which apparently entertain a different view, (Baylor v. Railroad Co., 40 N. J. Law, 23; Railroad Co. v. Stricker, 51 Md. 47; Railroad Co. v. Sentmeyer, 92 Pa. St. 276; Gibson v. Railway Co., 63 N.Y. 449;) but we think that the authorities first cited inculcate the better doctrine.

We recur, then, to the question first proposed, was the defendant in error guilty of culpable negligence in getting on the top of the train, and should the trial court have so declared as a matter of law? Intimately connected with this inquiry is the further question whether the circuit court erred in admitting the testimony as to what was the usual practice of...