Chicago, St. P.M. & O. Ry. Co. v. Bryant

• Decision Date: 07 January 1895
• Docket Number: 358.
• Citation: 65 F. 969
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. BRYANT.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F. 969

CHICAGO, ST. P., M. & O. RY. CO. v. BRYANT.

No. 358.

United States Court of Appeals, Eighth Circuit.

January 7, 1895

Thomas Wilson (S. L. Perrin was with him on brief), for plaintiff in error.

F. B Kellogg (C. K. Davis, C. A. Severance, M. D. Munn, H. C Boyeson, and N.M. Thygeson, were with him on brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

The defendant in error, as administrator of the estate of James Davidson, deceased, brought an action in the court below against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, the plaintiff in error, for negligence which he claimed caused the death of Davidson. He alleged in his complaint that the railway company was a common carrier between the Union Depot in St. Paul and a point near to its railroad shops, about a mile and a half westerly from the depot, and that the deceased was killed by its negligence while it was transporting him as a passenger between these points. The answer admitted that the company was a common carrier, but denied that at the time of the accident it was a common carrier of passengers between the points named, denied that the deceased was a passenger on any car operated by it at the time of his injury, denied that it was at that time managing or running any passenger car or cars between those points, and alleged that any injury the deceased suffered was caused solely by his own negligence and the negligence of those who were operating the passenger coach in which he was traveling. The case was tried to a jury, and at the close of the testimony the company requested the court to instruct the jury to return a verdict in its favor, on the ground that the evidence was insufficient to justify a verdict against it. The court refused to grant this request, and the jury returned a verdict against the company. The first question to be considered, therefore, is whether or not the evidence was sufficient to sustain such a verdict.

This was the second trial of this case. At the first trial, the court, at the close of the administrator's evidence directed a verdict in favor of the company. On a writ of error to this court, the judgment rendered on that verdict was reversed. According to the record then before us, the company's railroad yard extended from the Union Depot to the shops, and included the two points between which the deceased was being transported when he was killed. The company's general yard master acted as conductor of the train that carried him, which consisted of a switch engine and a passenger car that belonged to the company, and the injury was inflicted in its yard. The engine was operated by one of its engineers, who was paid by it extra hours for running this train on the evening of the accident, and by one of its firemen, under the orders of this yard master. On the evening of the accident, this engineer, by direction of the yard master, went to the shops of the company, and, with the switch engine, drew the passenger coach, filled with employes of the company, from the shops to the Union Depot, where they held a meeting. The deceased rode from a point near the shops to the depot in this coach. After the meeting, and at about 10 o'clock in the evening, this coach stood opposite the platform at the depot, on the outgoing west-bound track of the company, in front of the engine. The yard master invited the employes to board the coach, and the deceased and others did so. This yard master then directed the engineer to push the coach towards the shops. He did so, and on the way pushed it against some freight cars that were on the track, and Davidson was killed in the collision. There was no evidence that any one paid any fare. The duties of the yard master appeared from that record to be to instruct the switchmen what to do, to receive orders from the shipping agents, and to tell the foremen of the crews what to do. There was no evidence that the yard master was not, at the time of the accident, in the discharge of his duties, as the employe of the company, in operating this train, and none that he was not authorized to transport passengers for it. On this state of facts, we held that the presumption was that one riding in a passenger coach or omnibus, or any other carriage of a common carrier that was palpably designed for the transportation of passengers, was lawfully there by invitation or permission of the employes of the carrier in charge of the vehicle, and that these employes had authority to bind the carrier by such invitation; that these presumptions were not conclusive, and might be rebutted by proper evidence or countervailing circumstances; but that, in the absence of such evidence or circumstances, there was some testimony in that record proper for the jury to consider, on the issue of whether the deceased was a passenger of this company or not. Bryant v. Railway Co., 53 F. 997, 4 C.C.A. 146.

The case now presented differs radically from that to which we have referred. In the record now before us the following facts are established without dispute: The point near the shops between which and the Union Depot this train moved on the night of the accident was not within the limits of the company's yard, but was about three-fourths of a mile west of its westerly limit, and was connected with it by but a single track. The company operated no passenger cars or trains between these points, and never had operated any, except that, by special order of the superintendent or train dispatcher, an excursion train, with a regular conductor, engineer, and brakeman, was once or twice operated from the shops to Hudson, Wis., five or six years before this accident, to carry the employes to a picnic. The yard through which this train passed was a freight yard, was used to switch freight cars and to make up freight trains, and the yard master who ran this train had nothing to do with making up, switching, or running passenger cars or trains, unless directed to do so in a specific case by a special order of his proper superior, save that, when such trains came through his yard, it was his duty to see that they had a clear track, and to direct engineers who were not familiar with the yard on what tracks they should run their engines; and, save that he occasionally switched an extra passenger coach in the yard, this yard master never had any authority to receive or carry passengers for this company, except in one instance, when, by special order of his superiors, he was directed to take the superintendent of the company, on an engine, to Shakopee, a distance of about 25 miles, and except that occasionally, by the special orders of his superiors, he acted as conductor of a regular passenger train between St. Paul and Merriam Junction, a distance of about 40 miles, when the regular conductors were for some reason unable to act. With these exceptions, he had never carried any passengers for this company before the night of the accident. He was the 'day yard master' in this freight yard. He had no duties to discharge for this company after 6 p.m. At that time he went off duty, and from that time until the next morning the yard was in charge of, and the duties of the yard master were discharged by, another, who was termed the 'night yard master.' These duties were so discharged by the night yard master on the night of this accident. Nevertheless, this day yard master operated this train between 7 and 11 o'clock at night, for the purpose of enabling himself and his fellow servants to ride free to a meeting of their own. He had no authority to run passenger trains or coaches over this railroad from the company or any of its officers, and none of the officers of the company that had the right to permit such trains to run between the depot and these shops knew that he intended to operate this train until after the accident occurred.

It is not only difficult to discover in this record any evidence to war?rant the finding of the jury that the relation of passenger to carrier existed between the deceased, who rode on this wild train, on the invitation of this yard master and the company, but the defense of the company that the train he occupied was not operated by the company, but by the yard master, without authority from or notice to it, seems to be conclusively established by this uncontradicted testimony. That a yard master generally has no authority to accept, receive, or carry passengers for his company, or to run any passenger trains on its railroad, is proved without contradiction. That this particular yard master never had and never exercised or attempted to exercise any such general authority before this accident, is established by the testimony of the general officers of this company, and is nowhere contradicted. This testimony is confirmed, and the rule it establishes is proved by the...