Chicago, R.I. & P. Ry. Co. v. Caulfield, 415.

• Decision Date: 10 September 1894
• Docket Number: 415.
• Citation: 63 F. 396
• Parties: CHICAGO, R.I. & P. RY. CO. v. CAULFIELD.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 396

CHICAGO, R.I. & P. RY. CO. v. CAULFIELD.

No. 415.

United States Court of Appeals, Eighth Circuit.

September 10, 1894

Stephen S. Brown (J. E. Dolman, on the brief), for plaintiff in error.

C. A Mosman and James C. Davis, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is a suit for personal injuries, which originated in the city of St. Joseph, Mo. The action was brought by John J. Caulfield the defendant in error, against the Chicago, Rock Island &amp Pacific Railway Company, the plaintiff in error, in the circuit court for Buchanan county, state of Missouri, from whence it was removed to the United States circuit court for the western district of Missouri. It was tried in the latter court, and resulted in a verdict and judgment against the railway company. The errors that have been assigned relate to the instructions that were given by the trial court. A brief statement of the circumstances under which the injuries were sustained is essential to a correct understanding of the questions that we have to determine.

The accident occurred in a railroad yard in the city of St Joseph, which appears to have been used in common by several railroad companies, about 6 o'clock p.m., on the evening of the 29th day of May, 1890. At that hour, one of the defendant company's engineers, who had charge of a switch engine, was taking the engine to the roundhouse at the conclusion of the day's labor. At a certain point on the way to the roundhouse, where there were three tracks belonging to as many different railroads, which were laid side by side, was a footpath across these tracks, which was used by many people, especially in the morning and in the evening, when they were going to or returning from their place of work. Where this path led across the track, the plaintiff, John J. Caulfield, who was a boy between eight and nine years old, was run over by the switch engine in question, and was severely injured. Some distance to the north of the point where the accident occurred, the track on which the switch engine was moving on its way to the roundhouse was crossed obliquely by three other railroad tracks, and before going over that crossing, just prior to the accident, the switch engine stopped and whistled, as it was its duty to do, and then moved south over the crossing to the place where the plaintiff was run over and injured.

The engineer, with respect to his own conduct on that occasion gave evidence tending to show that when he reached the aforesaid railroad crossing, and stopped to whistle, he saw a boy standing about 3 1/2 rail lengths south of the above-mentioned footpath; that the boy was standing at the time on the end of one of the ties of the Rock Island road, so near to the rail that he would be struck by the engine; that he kept his eye on the boy, and rang the engine bell, but that he seemed to pay no attention to the warning, whereupon an alarm whistle was sounded; that the boy then turned around, and looked at the engineer, who motioned to him with one hand, and that he then stepped off from the tie, and to a sufficient distance from the track to allow the engine to pass in safety; that he then started his engine forward, going at the rate of from three to four miles per hour; and that, when he came within ten or twelve feet of the boy, the latter started to run across the track immediately in front of the engine, whereupon, according to the engineer's statement, he reversed his engine, put on the vacuum brake, and stopped it as soon as possible, but not in time to avoid the injury. On the other hand, there was evidence in behalf of the plaintiff below which tended to show that the switch engine was running at the rate of from five to eight miles per hour, and that as it moved south over the railroad crossing above mentioned, and until it reached the footpath where the boy was hurt, the engineer in charge of the same was looking west at an excursion train, moving north on an adjoining track, and was not looking down the track in the direction in which the switch engine was moving, and that he did not give any proper signal to warn people who might be on the footpath of impending danger. The evidence for the plaintiff further tended to show that, at the same time, the boy was standing in the center of the Rock Island...