Chicago, St. P., M. & O. Ry. Co. v. Elliott, 191.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 55 F. 949
• Docket Number: 191.
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. ELLIOTT.
• Decision Date: 15 May 1893

55 F. 949

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

No. 191.

United States Court of Appeals, Eighth Circuit.

May 15, 1893

[55 F. 950]

Thomas Wilson, (S. L. Perrin, on the brief,) for plaintiff in error.

Frank F. Davis, (Henry M. Farnam, on the brief,) for defendant in error.

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

SANBORN, circuit Judge.

The Chicago, St. Aul, Minneapolis & Omaha Railway Company brings this writ of error to reverse a judgment of $5,000 recovered by Fred. P. Elliott, the defendant in error, who was the plaintiff below, for personal injuries which he alleges resulted to him from the negligence of the company. The railway company had made a contract with J. B. Sutphin & Co., a copartnership, to transport 13 car loads of sheep from West Superior, Wis., to Chicago, Ill, and to carry the plaintiff, who was their foreman in charge of the sheep, free. Spooner is a station about 60 miles south of West Superior. It is the head of a division. There is a railroad yard at this point, and the custom of the company is to change the crews, engines, and cabooses of freight trains at this station. Altoona is a station on the defendant's railroad about 100 miles south of Spooner. The train which carried the sheep left West Superior at 11 o'clock in the forenoon on January 28, 1891. It then consisted of the engine, the 13 cars of sheep, and a caboose. At a station about 25 miles south of West Superior two cars of dead freight were put into the train, three cars from the engine. The train arrived at Spooner at 3 o'clock in the afternoon.

The plaintiff, Elliott, boarded this train at East Superior, a station a few miles southeast of West Superior, and rode free, under the contract with Sutphin & Co., in the caboose, from East Superior to Spooner. He was familiar with the railroad, the location of Spooner, and its railroad yards; knew that it was the custom of the company to change crews and cabooses at that station; had made at least three trips over this road before, and knew how the train was made up. When the train stopped at Spooner he alighted, and commenced at the car next to the caboose, to examine and [55 F. 951] care for the sheep. He walked forward along the train for at least ten minutes, and had examined all of the sheep but the two carloads next to the engine, when the conductor of the train brought him his lunch. He took this, and started back alongside of the train to carry it to the caboose, when the train started south, and when he was about seven cars from its rear it was moving so rapidly that he thought he could not board the caboose, and thereupon he grasped the ladder upon one of the stock cars, ascended it, and commenced to walk back, upon the top of the cars, towards the caboose. The employes of the company were then switching the train for the purpose of changing the caboose. For this purpose they drew it south past a switch, so that they could send the caboose in on another track, uncoupled it, backed the train up sufficiently to send the caboose in upon this second track, and then pulled the balance of the train forward, leaving the caboose. When the train had passed south of the switch, and commenced to back, the plaintiff was three or four cars from the caboose. He knew the train was backing north, and could not go to Chicago in that direction, but he still walked on towards the caboose; and, just as he was stepping from the last stock car to it, the latter was kicked off from the train, and he fell to the ground, where his foot was crushed by one of the wheels of the rear stock car, which was still moving back very slowly.

In the movement and handling of the train at Spooner there was no negligence on the part of the defendant, unless it arose from the following facts, which were proved over the defendant's objection: The plaintiff, while riding in the caboose between West Superior and Spooner, asked the conductor if he would change cabooses at Spooner, and the latter replied that he would not, that there was no extra crew at Spooner, and that he would run through to Altoona. Shortly after the conductor asked him if he would want anything to eat at Spooner. He replied that he would like to get dinner, and look over the sheep, if he had time, and the conductor said: 'You won't have time for that. We won't stay there over five minutes,-- just long enough to change engines. The caboose and crew will go to Altoona. ' The plaintiff knew that the conductor was running the train under orders from superior officers, and that his orders were liable to be changed at any time; but in ascending the car, walking back towards, and attempting to step upon, the caboose, he relied upon the assurance of the conductor that the car would not be changed, and when he climbed upon the stock car he supposed that the train was going out for Chicago. The admission of the evidence of these conversations, and of plaintiff's reliance upon them, is the principal error assigned, and the ground of the error is that these were not the proximate cause of the injury.

The rule of law which governs this case is not difficult of statement, but, like many other rules, the difficulty is solely in its application. 'Causa proxima non remota spectatur.' An injury that is the natural and probably consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probably result of the negligence [55 F. 952] is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted from it, but for the interposition of some new, independent cause, that could not have been anticipated. Obviously,...