Choctaw, O. & G.R. Co. v. Jackson

• Citation: 192 F. 792
• Decision Date: 11 December 1911
• Docket Number: 3,531.
• Parties: CHOCTAW, O. & G.R. CO. v. JACKSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

192 F. 792

CHOCTAW, O. & G.R. CO. v. JACKSON et al.

No. 3,531.

United States Court of Appeals, Eighth Circuit.

December 11, 1911

H. B Low (C. O. Blake, R. J. Roberts, and Stuart & Gordon, on the brief), for plaintiff in error.

J. A L. Wolfe (Wolfe, Hare & Maxey, on the brief), for defendants in error.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

On January 2, 1902, the tracks of the Missouri, Kansas & Texas Railway, hereafter called the M., K. & T., and the Choctaw Oklahoma & Gulf Railroad, hereafter called the Choctaw crossed substantially at right angles at South McAlester, Ind. T. The tracks of the M., K. & T. at that point extended almost due north and south and those of the Choctaw substantially east and west. There was a heavy upgrade on the M., K. & T. immediately north from the crossing. To the west of the main track of the M., K. & T. was what is known as a 'passing track' or siding, which extended from a very considerable distance south of the crossing to a point north thereof and across the line of the Choctaw. The entrance from the M., K. & T. main track to the passing track was by means of a switch about 15 to 30 feet south of the crossing. To the west of this passing track was a Y, and the Choctaw crossing over the M., K. & T. main line and passing track was between the legs of this Y and nearer the south than the north one. At the main line crossing north of the Choctaw and east of the M., K. & T. was a common station of the two roads, and just across the Choctaw and east of the M., K. & T. was a hotel or dining hall. South of that and east of the M., K. & T. was a lunchroom. There was ordinarily a gate maintained at the crossing which was so arranged that, when it was open as to one road, it was of necessity closed across the other. This gate was so equipped with lights at night as to warn approaching trains if it was closed as to them. On January 2, 1902, this gate was broken down, and it became necessary after nightfall to use lantern signals at the crossing. About 8 o'clock that night train No. 102 on the M., K. & T. came from the south into South McAlester bound for Muskogee.

It was under charge of James C. Jackson as conductor. This train had a number of empty cars which were to be set out for the Choctaw. It first stopped down near the lunchroom referred to, and Conductor Jackson went up to the station. In a short time he came out and his train pulled north, cutting off the caboose and leaving it on the main line just south of the switch into the passing track, and the balance of his train, consisting of nearly 40 cars, went north on the main line until the rear car probably cleared the Choctaw track from 10 to 30 feet. While it was going north Jackson threw the switch so as to turn the cars in on the passing track, and simultaneously signaled his train to stop and back up, which it did. In the meantime a switch engine had been standing on the Choctaw west of the M., K. & T., with its front toward the east and with four freight cars in front of it and one caboose behind. It attempted to cross, and the trains came into collision, and the rear car of the M., K. & T. train was derailed, and carried around against the station, and Conductor Jackson was crushed between the car and the station. Both his legs were cut off close to the knees, and he died in about 36 hours.

This action was brought in the United States Court for the Indian Territory, at Durant, by Annie Jackson, widow, and Nora Jackson, Clara Jackson, and Willie Jackson, minor children of James C. Jackson, against the M., K. & T. and the Choctaw to recover damages for the death of said Jackson. On motion of the defendants the . .. was changed to the Atoka Division. After this change the plaintiffs filed an amended complaint against both roads, in which they alleged that Annie Jackson was the lawful wife of the said James C. Jackson, and that the other plaintiffs were his children, and that there was no administration on the estate of the said Jackson, and alleged that on or about the 2d day of January, 1902, the said James C. Jackson approached said station at South McAlester with a train from the south bound for the station of Muskogee; that it was necessary according to his orders and instructions that certain cars in his said train should be set out or left at South McAlester; that he ordered and directed to place said cars upon a side track lying along the west side of the railway track of the said M., K. & T. Railway Company and immediately south of the point where the side tracks of said defendants crossed; that, after receiving the proper signal from said watchman, the said James C. Jackson, with the view of carrying out his said instructions in reference to setting out said cars, caused his said train to be cut and the north end thereof to which said cars were then attached to be moved north over said crossing for the purpose of permitting the switch at the north end of said side track to be opened so that on the proper signal the engineer operating the engine drawing his train should back said cars over said crossing into and over said switch and onto said side track aforesaid, and that, just after his said train had cleared said crossing, some employe of the M., K. & T. Railway Company did signal his engineer to back up for the purpose aforesaid, and while his train was in backward motion it came into collision with another train of the defendant the Choctaw, Oklahoma & Gulf Railroad Company, which was then and there being moved over said crossing from the west towards the east; that the said James C. Jackson was standing upon the depot platform near the southwest corner of the depot building, said platform and building being situated north of the track of the Choctaw, Oklahoma & Gulf Railroad Company and east of the track of the Missouri, Kansas & Texas Railway Company; that, when the south end of said James C. Jackson's train came into contact with the moving cars of the Choctaw, Oklahoma & Gulf Railroad Company, the same were caught and suddenly thrown from the track in an easterly direction around and against the southwest corner and south side of said building catching the said James C. Jackson and throwing him between the edge of one of said cars and a window sill of one of the windows in said depot building, thereby crushing, breaking, and cutting his legs at about and above the knee, and otherwise injuring him so that shortly thereafter he died. Plaintiff shows to the court that neither James C. Jackson nor any other person engaged with him in operating said train of the Missouri, Kansas & Texas Railway Company was guilty of any negligence or of any act proximately contributing to or causing the death of the said James C. Jackson; that the train of the said James C. Jackson was then and there entitled to the use of said crossing, and the employes of the Choctaw, Oklahoma & Gulf Railroad Company were not entitled to the same, and were guilty of negligence in running their said train over said crossing at said time and under the circumstances; that, when the train of the said James C. Jackson passed over said crossing from the south to the north, it stopped with the rear end thereof within 30 feet of said crossing, and that according to rules, regulations, customs, and usages which were in force and had been in force for a long while the employes operating the train, engines, and cars of said Choctaw, Oklahoma & Gulf Railroad Company had no right to proceed or attempt to make said crossing, and in attempting to pass over the same as they did under the circumstances they violated such rules, regulations, customs, and usages and were guilty of negligence. Plaintiff further shows to the court that the employes of said defendant Choctaw, Oklahoma & Gulf Railroad Company engaged in operating the engine and cars with which the train of said James C. Jackson collided were guilty of negligence, in this: that they saw and were in a position to see the rear end of the train of said James C. Jackson, knew where the same had been stopped, saw the switch, and were in a position to see the switch which had been thrown to permit said cars to be placed upon said side track and from the position of the rear end of said Jackson's train and from the fact that said switch had been opened said employes in operating said other train were guilty of negligence in rushing their train over said crossing when they knew or by exercise of ordinary care should have known that said Jackson and those engaged with him in operating said train were not through with said crossing and would attempt to back said train over the same as they actually did; that, if they did not see and know all these things, they were guilty of negligence therein. They were further guilty of negligence in failing to keep a lookout, and in failing to observe and obey the signals of the watchman at said crossing.

The defendant, the Choctaw, filed its combined demurrer and amended answer. The demurrer was general, and for the reason that the amended complaint did not state facts sufficient to constitute a cause of action against the defendant. In its answer it denied that the plaintiff Annie Jackson was the lawful wife of said James C. Jackson and the other plaintiffs were his children, and denied that there was no administration of the estate of said Jackson; denied that at the station of South McAlester the line of the M., K. & T Railway Company extended north and south, and that the Choctaw line crossed the same from east to west; denied that on and prior to said date said railway companies had erected and maintained at said crossing a gate and had in their employ a gatekeeper whose duty it was to attend said crossing and move said gate...