Chicago, R.I. & P. Ry. Co. v. Sutton, 429.

• Decision Date: 10 September 1894
• Docket Number: 429.
• Citation: 63 F. 394
• Parties: CHICAGO, R.I. & P. RY. CO. v. SUTTON.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 394

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

No. 429.

United States Court of Appeals, Eighth Circuit.

September 10, 1894

W. F Evans (M. A. Low and J. E. Dolman, on the brief), for plaintiff in error.

Thomas P. Fenlon, Jr. (T. P. Fenlon, on the brief), for defendant in error.

Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit judges.

SANBORN Circuit Judge.

On October 23, 1892, while Fred Sutton, the defendant in error was performing his duties as a brakeman on one of the trains of the Chicago, Burlington & Quincy Railroad Company at a railroad crossing near Reynolds, in the state of Nebraska, an engine and train of cars of the Chicago, Rock Island &amp Pacific Railway Company, the plaintiff in error, collided with the train of the Burlington Company, and injured him. He sued the Rock Island Company for damages for this injury which he alleged was caused by its negligence. That company denied any negligence on its part, and alleged that the negligence of the Burlington Company caused the injury, and that the defendant in error was guilty of contributory negligence. There was no evidence of any contributory negligence on the part of the defendant in error upon the trial, and the court, without objection, so charged the jury. The question whether or not the Rock Island Company was guilty of negligence that was the proximate cause of the injury was submitted to the jury under instructions to which no objection is made, and the jury found that it was, and returned a verdict for the defendant in error.

Complaint is made of but a single supposed error in the trial of this case. It is in effect that the court below refused to charge the jury that, under a certain statute of the state of Nebraska, the conductor and engineer of the Burlington train were negligent in running it upon the crossing without stopping it as they approached, and that it did charge the jury that these employees were permitted to run the train over the crossing without stopping it if the signals the company there maintained indicated no danger in so crossing. But whether this instruction was right or wrong is entirely immaterial to the decision of this case. The only defenses the Rock Island Company had were that it was not guilty of any negligence that was the proximate cause of the injury and that the negligence of the defendant in error contributed to it. If the injury was not caused by the negligence of the Rock Island Company, it was entirely immaterial in this...