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

Decision Date10 March 1939
Docket NumberNo. 11245.,11245.
Citation102 F.2d 352
PartiesCHICAGO, ST. P., M. & O. RY. CO. v. KULP.
CourtU.S. Court of Appeals — Eighth Circuit

Warren Newcome, of St. Paul, Minn. (Alfred E. Rietz, of Farmington, Minn., and William T. Faricy, of Chicago, Ill., on the brief), for appellant.

William H. DeParcq, of Minneapolis, Minn. (Robert J. McDonald, of Minneapolis, Minn., on the brief), for appellee.



Appellee herein, plaintiff below, sued as administrator to recover damages for the death of Harry Rice Kulp, sustained while in the employ, as a freight brakeman, of the above named appellant railway company, generally referred to as the "Omaha". In this opinion the parties will be designated as in the trial court.

This is the second time this case has appeared before us on appeal. On the former trial, at the conclusion of all the evidence, the district court sustained the defendant's motion for a directed verdict on the ground that the evidence was insufficient to warrant submission to a jury. This court held that the trial court erred in sustaining that motion. The judgment below was reversed and remanded for a new trial. At that trial the jury returned a verdict for the plaintiff and the Omaha appeals.

The facts involved at the former trial are very fully set forth in the opinion of this court on the last appeal (8 Cir., 88 F.2d 466), to which reference is made. They will be repeated here only to such extent as may be necessary to an understanding of the specific issues presented on this appeal. The contentions of appellant may be covered under two heads: (1) No substantial evidence of negligence or proximate cause; (2) decision of this court on prior appeal does not preclude re-examination and reversal of judgment, and this action is earnestly invited. Appellee invokes the doctrine of "law of the case" as decisive on the present appeal; but insists that, in any event, the evidence adduced justifies submission to the jury and furnishes substantial support to its verdict.

In Thompson v. Maxwell Land Grant & Railway Company, 168 U.S. 451, 456, 18 S.Ct. 121, 123, 42 L.Ed. 539, Mr. Justice Brewer, speaking for the Supreme Court of the United States, said:

"It is settled law of this court, as of others, that whatever has been decided on one appeal or writ of error cannot be reexamined on a second appeal or writ of error brought in the same suit. The first decision has become the settled law of the case".

This court has repeatedly held that the decision on former appeal is the "law of the case" on a question presented in that former appeal, unless the evidence introduced at the subsequent trial is substantially different from that considered on the first appeal, and must be followed in all subsequent proceedings in such case in both district and appellate courts, unless that decision is clearly erroneous and works manifest injustice. The introduction of new testimony at the second trial which is merely cumulative will not prevent the application of this doctrine on the second appeal. While this rule of practice is not a limit of power, it is nevertheless a salutary one, and should be departed from only after careful consideration on situations arising in specific cases. The following cases announce the principles declared by this court: Pennsylvania Mining Co. v. United Mine Workers of America et al., 8 Cir., 28 F.2d 851; Aetna Life Insurance Co. v. Wharton, 8 Cir., 63 F.2d 378; Zurich General Accident & Liability Insurance Co., Ltd. v. O'Keefe, 8 Cir., 64 F.2d 768; American Surety Company v. Bankers' Savings & Loan Ass'n of Omaha, Nebr., 8 Cir., 67 F.2d 803, 804; Claiborne-Reno Co. v. E. I. Du Pont De Nemours & Co., 8 Cir., 77 F.2d 565; New York Life Insurance Co. v. Golightly, 8 Cir., 94 F.2d 316; Marion Steam Shovel Co. v. Bertino et al., 8 Cir., 82 F.2d 541.

The train on which the accident occurred left Mankato, Minnesota, about 8 o'clock on the evening of July 19, 1933. Its destination was Minneapolis. The only points on this route with which this inquiry is concerned are Chaska Hill, Eden Prairie, Hopkins, Cedar Lake, Lyndale Avenue Bridge, and the warning telltale placed 156 feet west of that bridge. Chaska Hill is 19.8 miles west of Lyndale Avenue Bridge, and Holden Street, Minneapolis, is three fourths of a mile east of that bridge. The deceased was the head brakeman, whose duty was to attend to the duties of brakeman at the head end of the train. Normally his position, while the train was in motion, was in the cab of the locomotive. At Chaska Hill he observed that a brake on one of the cars was "sticking". This was made evident by "fire flying", and Kulp dropped off to release the brake. The train did not stop at Chaska Hill, but continued without stopping to some point beyond Lyndale Avenue bridge. Kulp did not re-enter the locomotive, but caught the caboose as it passed. It is undisputed that this action of Kulp was incidental to a brakeman's duties. Chaska Hill is described as a very steep hill, and at that time the train was moving at a speed of 5 or 10 miles an hour. After leaving Chaska Hill the speed increased to 30 or 35 miles an hour, and varied within these limits.

When the train reached the East Minneapolis yards, after passing under the Lyndale Bridge at about 2:35 A. M. on July 20th, head brakeman Kulp was missing. An engine was sent back along the track, and at 4 A. M. his severed body was found partly between the rails of the eastbound track, over which the train had approached Minneapolis, and about 25 or 26 feet east of the Lyndale Bridge. From Merriam Junction, a point west of Hopkins, the train was operated over the tracks of the Minneapolis & St. Louis Railway Company, hereinafter designated as the St. Louis Company. At Hopkins the following warning message was received from the train dispatcher of the St. Louis Company: "Telltales down on south side of Lyndale Avenue. Bridge will not clear man sitting or standing on top of train". This message was delivered to both locomotive and caboose at 2:17 A. M. on July 20th. The negligence charged by plaintiff was the failure to communicate this warning to the deceased, who is alleged to have been struck by the sagging telltale frame, thrown beneath the train, and killed.

In support of this charge, and the allegations of his complaint, plaintiff introduced the report of conductor Helmer concerning this accident to brakeman Kulp, which was submitted to his employer, the Omaha, and likewise to the St. Louis Company. This report was in accordance with the practice obtaining, was made about 4:15 A. M. July 20, 1933, before Helmer went to his home, and was filled out upon a blank of the Omaha Company provided for use in case of personal injuries. The parts most pertinent to this inquiry are the following: After the heading "Nature of Accident""Evidently was on top of train and was knocked off". Under the caption "Remarks", "Dropped off on Chaska Hill seen fire flying. Caught caboose and started over the top of train too head end".

At 2 o'clock on the following afternoon of July 20th, a joint investigation was held by the Omaha and St. Louis Railways, at which the questions and answers were taken down and transcribed by a stenographer, and the statements made were signed by the employees examined. Helmer's statement, relative to the accident to brakeman Kulp about 2:25 A. M. July 20, 1933, is set out in the former opinion (8 Cir., 88 F.2d 466, 468) and will not be repeated here. In addition to the official report of the conductor in charge of the train to his employer, that Kulp, after boarding the caboose, started over the top of the train to the head end, plaintiff introduced at the former trial two witnesses, switchmen in the employ of the St. Louis Company, who were working in the Cedar Lake yard of that Company on the night of July 19, 1933. This yard is situated east of Hopkins and 1½ miles west of the Lyndale Bridge. These witnesses testified that they saw this Omaha train pass at about 2:30 o'clock of the morning of July 20th, and saw a lamp on top of the train, carried by someone, and moving toward the head or engine end of the train. Substantially this same testimony was repeated at the last trial, and was somewhat strengthened by an additional witness as to conditions on neighboring tracks.

The contention of the defendant, at both trials, was that Kulp entered the caboose at Chaska Hill and remained there until the train reached and stopped at Holden Street, at which time the caboose was standing nearly, if not quite, under the telltales in question. That he left the caboose then and proceeded toward the head of the train; that while in the caboose at Hopkins, he received and read the warning message concerning the telltales, and knew of the danger confronting him if he proceeded over the top of the train; that, therefore, no negligence on the part of defendant was shown. At the first trial two defense witnesses testified that they saw this Omaha train pass at Eden Prairie, which is between 10 and 11 miles west of the Lyndale Bridge and 6 miles west of Hopkins, and did not observe any light on top of the cars as they passed. At the second trial an additional defense witness was introduced who testified that he saw no light upon the cars as they passed Hopkins. This testimony is, of course, cumulative merely, and has no effect, as appellant insists, conclusively to destroy the effect of the testimony of plaintiff's witnesses concerning the light seen later as the train passed the Cedar Lake yard. The cases of Chesapeake & Ohio R'y. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983, and Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819, require consideration, but not unqualified acceptance of such testimony. The jury question still remained.

At the last trial testimony for the defense was added to...

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