Chicago, St. P., M. & O. Ry. Co. v. Myers, 848.

• Decision Date: 12 April 1897
• Docket Number: 848.
• Citation: 80 F. 361
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. MYERS.
• Court: U.S. Court of Appeals — Eighth Circuit

80 F. 361

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

No. 848.

United States Court of Appeals, Eighth Circuit.

April 12, 1897

Thomas Wilson (L. K. Luse with him on the brief), for plaintiff in error.

Edwin A. Jaggard (O. A. Turner with him on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

THAYER Circuit Judge.

This is a suit for personal injuries. Levi W. Myers, the defendant in error, who was the plaintiff below, purchased a ticket from St. Paul to Chicago over the railroad of the Chicago, St Paul, Minneapolis & Omaha, Railway Company, the plaintiff in error, and was received as a passenger by said company on one of its trains which left St. Paul at 8 o'clock on the morning of September 10, 1894. When the train reached a point a few miles east of Hudson, Wis., it found the track obstructed by a freight train that had been derailed about 4 o'clock a.m. of that day, which train was made up in part of three tank cars, two of which contained naphtha, and one refined coal oil. Several hours before the arrival of the passenger train from St. Paul, the tank containing oil had taken fire, and it was burning fiercely, and making considerable noise, when the passenger train from the west arrived. One of the naphtha tanks had exploded when the wreck occurred, and the other naphtha tank and its contents had been destroyed in the wreck. On the arrival of the passenger train from St. Paul, two openings were made in the fence on the south side of the railroad right of way, one of said openings being 258 feet west, and the other 256 feet east, of the burning oil car, for the purpose of permitting passengers to pass through the fields around the burning car, at a safe distance therefrom, to a point on the track east of the wreck, where another train was expected to start shortly for the east, carrying the passengers who had arrived from St Paul. The train from St. Paul stopped abreast of the west opening, and the plaintiff, with other passengers, left the train where it had halted. They passed through the west gap in the fence, as they were directed to do, walked around the burning car over the route that was indicated to them, and reached the east opening in the fence, through which they passed back onto the right of way. While they were standing somewhere in the vicinity of the east opening, awaiting the departure of the train for the east, the burning oil tank exploded, and the plaintiff was very seriously burned and disfigured. The evidence at the trial appears to have been conflicting as to where the plaintiff was standing when the explosion occurred, but the bill of exceptions recites that the defendant company offered testimony tending to show 'that no passenger or person at said west gap, or west thereof, or on said route between the said west gap and said east gap, or at, near to, or east of said east gap, was seriously injured by said explosion; that plaintiff, after he had passed around to the said east gap, and to said place designated as a temporary station, as aforesaid, without the knowledge or consent of any officer or agent of the defendant, and of his own volition, left the place so designated, as aforesaid, as a temporary station, at which the passengers should wait, and went west on the defendant's right of way, west of said east gap, toward the said burning tank, more than one-half of the distance between said east gap and the said burning tank, and that while he was there standing within about-- feet of said burning tank, it exploded, and he was injured, which is the injury complained of, and that he would not have been injured materially or at all had he remained at the said east gap, or at the place designated as a temporary station as aforesaid that no officer or agent of defendant had actual knowledge that plaintiff was at or near the place at which he was injured as aforesaid, or that he had left the place designated as aforesaid as a temporary station at which the passengers should remain until after the explosion; that the train from St. Paul on which plaintiff was arrived at the point at which it stopped at the west gap at about 10 o'clock in the forenoon, and that the explosion occurred at or about 10:45 o'clock in the forenoon of said day.'

The principal question presented by the record is whether the trial court erred in refusing certain instructions which were asked by the defendant company. These instructions were as follows:

'(5) If the jury find that the plaintiff left the point designated as the place for passengers to wait for the train for Chicago, and went to a point nearer to the burning tank, for his own pleasure, or to gratify his curiosity, or to see the burning tank, and was there injured, and that he would not have been injured had he remained at the point designated, then he is not entitled to recover, and the jury should find for the defendant.'

'(7) If you find that the plaintiff passed around the burning tank to a point at or near the east gap, and that he understood, or by ordinary observation or the exercise of ordinary care would have understood, that that was the point where he was to take the train for the east, it was his duty, so far as his relations to the defendant are concerned, to remain there until the train should arrive.'

'(9) If it would have appeared to a man of ordinary intelligence and prudence that the point at which the passengers were to remain was at or east of the east gap, then, if the plaintiff left that point, and went to a more dangerous place, at which he was injured, he cannot recover.'

These instructions were refused, and in lieu thereof the court charged the jury, in substance, that it was for them to determine where the plaintiff was standing with respect to the east opening in the fence when the explosion occurred, whether he knew that the place where he was standing was dangerous, and whether he was guilty of contributory negligence in going where he did, or in being where he was when the oil tank exploded. The only modification of this instruction was an instruction to the effect that, if the plaintiff knew that the place where he went and where he was west of the east gap was dangerous, and that he went there voluntarily, and that no prudent man would have done as he did, then he could not recover. But the charge, considered as a whole, was so framed as to permit the jury to decide that the plaintiff was not guilty of any contributory fault, although the fact was that he voluntarily walked up the right of way to the west more than one-half the distance from the east opening in the fence to the burning tank, and was standing there when it exploded, and was injured solely in consequence of his being in such exposed situation.

We feel constrained to hold that the three refused instructions above quoted were applicable to the testimony which was produced at the...