Crane Co. v. Busdieker

• Decision Date: 27 January 1919
• Docket Number: 5120.
• Citation: 255 F. 664
• Parties: CRANE CO. v. BUSDIEKER. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

255 F. 664

CRANE CO. v. BUSDIEKER. ^[1]

No. 5120.

United States Court of Appeals, Eighth Circuit.

January 27, 1919

Percy Werner, of St. Louis, Mo. (George M. Block and Frank B Coleman, both of St. Louis, Mo., on the brief), for plaintiff in error.

Arthur E. Kammerer, of St. Louis, Mo. (Leo Rassieur and Leo Rassieur, Jr., both of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

SANBORN Circuit Judge.

The Crane Company, a corporation, complains that at the trial of an action, brought by Mrs. Frances J. Busdieker for damages for its negligence, which she asserted caused the death of her husband, the court below, at the close of the evidence refused to instruct the jury to return a verdict in its favor, on the ground that there was no substantial evidence of its causal negligence, and the jury returned a verdict against it for $7,500.

In considering this complaint, every material issue upon which there is a substantial conflict in the evidence must be and has been treated as decided in favor of Mrs. Busdieker by the verdict of the jury. On that basis the facts which conditioned the decision of the complaint of the Crane Company are these: Edward Brown, an employe of that company was the driver of a team drawing a loaded wagon toward a boat which lay in the river by the side of the levee at St. Louis upon which he was to unload the wagon. The negligence alleged is the negligence of this driver. In order to get his wagon onto the boat, where it was to be unloaded, it was necessary for him to drive from the levee upon and across an apron and a bridge onto the wharfboat. The levee lay on the west side of the river, sloping downward easterly to and beneath the water of the river. The west side of the apron lay on the levee while its east side was attached to the west side of the bridge several feet above the water, and the bridge extended easterly to the wharfboat, so that over the apron and the bridge loaded wagons could be drawn from the levee onto the wharfboat. Brown drove his team from the south to a point on the levee whence he could conveniently drive down upon the apron, and thence across the bridge to the wharfboat and there on the levee he stopped. Before he arrived there the driver of a team attached to a loaded fruit wagon, in undertaking to drive onto the apron, had driven the north wheels of his wagon down the levee along the north end of the apron and the south wheels thereof onto the apron, and there the wagon stuck fast and became immovable. The driver unhitched his mules and drove them up onto the levee, leaving the forward end of the tongue of his wagon with chains attached to it pointing southeasterly and resting on the apron. Some time after this Mr. Mohrman, driving a team drawing a wagon, came off the wharfboat, and, seeing the condition of the fruit wagon, he backed up to it, after he had passed it, attached the rear axle of his wagon to the rear axle of the fruit wagon with a strong rope, and attempted, by driving up his team, to draw the fruit wagon up the levee. When Brown drove up from the south with his load, Mohrman was trying in vain to move the fruit wagon. Brown waited and watched his attempts for some time, but the fruit wagon remained immovable. Mohrman had then been trying to pull it from its place for from 5 to 15 minutes. There was room enough on the south side of the fruit wagon for...