Continental Trust Co. v. Toledo, St. L. & K.C.R. Co.

• Decision Date: 25 May 1898
• Docket Number: 464.
• Citation: 87 F. 133
• Parties: CONTINENTAL TRUST CO. OF NEW YORK et al. v. TOLEDO, ST. L. & K.C.R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

87 F. 133

CONTINENTAL TRUST CO. OF NEW YORK et al. v. TOLEDO, ST. L. & K.C.R. CO.

No. 464.

United States Court of Appeals, Seventh Circuit.

May 25, 1898

Clarence Brown, for appellant.

R. E Hamill, for appellee.

Before WOODS and SHOWALTER, Circuit Judges, and BAKER, District Judge.

BAKER District Judge.

This is an appeal by the receiver from a decree on the intervening petition filed by Walter Bartlett, administrator of the estate of Michael Delaney, deceased, to recover for damages sustained by the next of kin on account of the death of the decedent. The alleged negligence consisted in the construction and maintenance of a side track used for storing loaded coal cars having a dangerous grade, extending from a coal shaft for about 600 feet to its point of junction with the main track, and in failing to provide suitable means to secure such loaded cars on the said track, in consequence of which one of them ran down upon or so near the main track that the decedent, a brakeman, who was standing on the step on the side of the engine, was struck thereby, and instantly killed. The accident occurred on the night of December 15 1893. Delaney, at the time he was killed, was an extra freight brakeman, employed on the west end of the road. He had been employed in that capacity less than two months, and had made but a few trips over the road. Prior to that time he had been employed in the yards at Charleston. He was a strong, capable, and bright young man, about 20 years of age but with little experience as a brakeman. At the time of his death, he was braking on a local freight train which handled the output of a coal mine on the line of the railroad at Sorrento, Ill. The mine was near the main track, and it had a daily output of about 400 tons. The scale level at the mine was 2 feet and 7 inches higher than the main track at the point where the coal track joined it. The cars were placed on the scale level at the mine, and, when loaded, they were moved down the coal track to the east towards the point of junction with the main track. This coal track, having a length of about 600 feet and a descending grade of 2 feet 7 inches, was used for storing heavily loaded coal cars. It had no derail switch, and no blocks were provided to prevent the loaded cars from running onto the main track. The grade was in the upper two-thirds of the coal track, and loaded cars were habitually left standing upon this grade without being blocked, and without their brakes being set. The car nearest the main track had its brake set, and it was relied upon to hold the other cars which were run down against it. On the night of the accident, there were 15 or 16 loaded coal cars thus placed on the coal track, covering...