Chicago & N.W. Ry. Co. v. O'Brien

• Decision Date: 05 September 1904
• Docket Number: 1,925.
• Parties: CHICAGO & N.W. RY. CO. v. O'BRIEN.
• Court: U.S. Court of Appeals — Eighth Circuit

132 F. 593

CHICAGO & N.W. RY. CO. v. O'BRIEN.

No. 1,925.

United States Court of Appeals, Eighth Circuit.

September 5, 1904

On August 1, 1899, J. O'Brien, an express messenger in the service of the American Express Company, was fatally injured by the derailment and wreck near Boone, Iowa, of a fast mail train of the Chicago & Northwestern Railway Company. Mary O'Brien, as the administratrix of his estate, brought an action against the railway company under the provisions of the Iowa statute extending a right of action to personal representatives in cases of death caused by negligent or wrongful act. At the time of his employment O'Brien contracted with the express company to assume the risk of all accidents and injuries sustained in the course of his employment through negligence in the operation of any railroad, whether resulting in death or otherwise, and to indemnify and hold the express company harmless from any demand that might be made against it on account of any claim or recovery because of his injury or death; and he authorized the express company to contract in his behalf with any railroad company upon which he was being or was to be transported as an express messenger that neither he, nor any one claiming under him as personal representative or otherwise, would make any claim for compensation because of injury sustained while in the employment of the express company and resulting from the negligence of the railroad company, its employes, or otherwise. Subsequently the express company and the railway company entered into a contract whereby the former, for a stipulated consideration, acquired the right to use the railroad lines of the latter in the transportation of express matter. Pursuant thereto the railway company furnished cars adapted to the conduct of the express business.

It was agreed between them that employes of the express company should accompany the express matter upon the trains, have charge thereof, and that they should be transported free by the railway company. It was also agreed that the express company should protect and hold the railway company harmless from all liability that the latter might be under to the employes of the former resulting in any manner whatever while they were being so transported. These contracts were in force, so far as they lawfully could be, at the time of the accident and the death of the deceased. A statute of Iowa in force at the time provided that 'every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of the agents or by any mismanagement of the engineers or other employes when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts, such liability shall be legal or binding. ' Code, Sec. 2071. In the petition of the administratrix many defects in the track, engine, and cars were alleged as causes of the accident. The evidence at the trial failed to support any of those allegations, and the Circuit Court withdrew them from the consideration of the jury. It was also alleged in the petition that an efficient cause of the accident was an excessive and dangerous rate of speed of the train considering that it was upon a down grade and upon a sharp curve at the bottom thereof. The issue arising from a denial of this allegation was the only one submitted to the jury. The jury determined the issue in favor of the administratrix, and, a judgment having been accordingly entered, the railway company prosecuted its proceeding in error to this court. It is claimed by the administratrix that the verdict of the jury is supported (1) by the evidence of two witnesses who testified to the rate of speed at the time of the accident; (2) by the condition of the wreck as it was discovered to exist immediately after the accident; and (3) by a presumption of negligence which arose from the fact of the accident itself. The two witnesses were Robert Bowles and Job D. Clark. They claim to have seen the train from the bank of a stream between a quarter and a half mile away from the railroad. Between them and the railroad track there was a field of corn six or eight feet in height and more or less of timber and willows which fringed the stream. The accident occurred shortly after 5 o'clock in the morning. The presence of the two witnesses was accounted for by the fact that they had been fishing during the night. One of them was on top of the bank, which was quite high, and the other further down, nearer the water. Each of them testified that he had previously observed the movements of trains, and could tell the rate of speed. Each testified that immediately before the derailment the train was moving about ninety miles an hour. Bowles said his attention was attracted by the loud and unusual noise made by the approaching train that the train was in his view two or three seconds before it left the track; that a train moving ninety miles an hour would move one-ninth of a mile in a second; also, that if a train was running at the rate of ninety miles an hour, it would make about two-thirds of a mile in the minute; that he had frequently seen the trains upon the railroad track; and he added, 'And it is upon my knowledge and mere curiosity as given here that I think this train was moving ninety miles an hour. ' The witness Clark said that his attention was attracted to the train by 'The louder noise; more distinct than usual; more rapid'; that he thought it was going considerably faster than it commonly did, and that it did not slow up at the curve. When asked what he meant by 'faster than common' he replied: 'By the roar and the clink of the wheels at the end of the rails. It makes a big difference. That's where I get my rapidity.' When asked where he got his idea of the speed, he said: 'I hadn't no speed there. I simply got the sound. I didn't try to get any speed when I was down fishing.' And being asked how he undertook to say that the train was going faster then than it went before, he answered: 'By the noise. I heard an extra noise from what it generally made--roar and sissing noise. * * * I have no particular knowledge of my own how fast that train was making that morning.' After stating that in his best judgment the train was moving 85 or 90 miles an hour, the following occurred upon recross-examination: 'Q. How do you make your judgment at that rate of speed? A. Seen foot races. I have run them myself. Q. And that is the way you make it up? A. By foot races. Q. How long would it take you to run a mile now? A. I don't know. Q. How many feet have you got in a mile? A. About 365 feet.' The train consisted of an engine, an express car, two mail cars, and a storage car. The engine was badly wrecked. The express car was demolished, and portions of the train and objects therefrom were thrown from the right of way into and across a highway contiguous thereto and into a field adjoining the highway. The schedule rate of speed of the train was 45 miles per hour.

Upon the part of the railway company it was shown that the train left Boone on time at 5 o'clock in the morning. It was due to reach Moingona, 5 1/2 miles to the westward, seven minutes later. This was and had been the schedule time of the train. The conductor of the wrecked train testified that he did not notice that it was going any faster than usual, and he was corroborated in this by other employes upon the train. He also said that there was no necessity for an increase of speed, as the train was on time; that the derailment took place about 4 3/4 miles west of Boone, and that some one picked up and handed him the watch of the engineer, which had stopped at 5 minutes and 45 seconds after 5 o'clock; that he and the engineer had compared time before they left Boone, and their watches agreed within three or four seconds. He also said that he had theretofore made the run with a freight train down the hill from Boone to Moingona in five minutes, and, although the schedule gave them seven minutes, he had made the run 15 or 20 times in five minutes with the same fast mail train when they were late. He was corroborated in this particular by a locomotive engineer who had previously made the run with special and passenger trains in five minutes-- a speed of 66 miles an hour. A roadmaster of the company testified that there had never been any accident or derailment at the curve before or since. The trainmaster of the division west of Boone testified that he considered it safe to make the run from Boone To Moingona at a speed of 70 or 80 miles an hour, considering the condition of the track; and that it would be impossible to tell the rate of speed from the sound the train was making. There was some impeaching evidence of declarations of the conductor and one of the brakemen as to the speed on the morning in question, which may have affected the value of their testimony.

The railway company requested the Circuit Court to instruct the jury that they should not regard the fact of derailment as evidence of negligence on its part. The court declined to give the instruction, and nothing is found in its charge to the jury which fairly embodies the doctrine therein...