Crane v. Payne

• Decision Date: 07 June 1923
• Docket Number: 5740.
• Citation: 291 F. 551
• Parties: CRANE v. PAYNE, Agent.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F. 551

CRANE v. PAYNE, Agent.

No. 5740.

United States Court of Appeals, Eighth Circuit.

June 7, 1923

W. H Douglass, of St. Louis, Mo., for plaintiff in error.

W. M Hezel, of St. Louis, Mo. (J. L. Howell, of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and POLLOCK, District judge.

POLLOCK District Judge.

This is an action to recover damages for death by wrongful act brought by the widow of the deceased. At the trial the court on all the evidence directed a verdict for defendant therein. Plaintiff brings error.

But two grounds of error are relied upon; i.e.: (1) In the admission of evidence offered by defendant at the trial; (2) the action of the trial court in directing a verdict for defendant. To understand the controversy, the material facts may be briefly summarized, as follows:

Deceased Henry C. Crane, on the 6th day of November, 1918, was in the employ of the Director General of Railroads, then in possession of and operating the St. Louis Merchants' Bridge Terminal Railway Company in the city of St. Louis. At the time of his death deceased was working as a switchman in a crew of five men, to wit, an engineer, fireman, and switch foreman, and two switchmen, who were moving a train of about 45 cars from the yards of the Terminal Company for delivery to the Missouri Pacific and Wabash Railways. The cars which were to go to the Missouri Pacific were located on the rear end of the train, and were to be delivered either east of Fourteenth street or east of Twenty-Third street in the city. However, at which place the delivery was to be made was not known to those in charge of the movement until the train would reach Union Station territory. As the train was being moved, it passed over elevated tracks and down an incline until it reached the level of the Union Station yards. Steel bridges span the tracks and inclines at Twelfth, Fourteenth, Eighteenth and Twenty-First streets in the city. When the tracks were on inclines under these bridges, the cars would not clear a man standing on top of the car. The deceased was head brakeman on the moving train; that is, the brakeman nearest the engine when the train reached Twelfth street. He was seen just prior to this time standing on top of a car near the engine looking to the east. Before the train had reached the cross-over west of Fourteenth street, and while it was proceeding slowly westward, the foreman got down from the train, went to a telephone station and inquired where the delivery of the cars was to be made, and learned it was to be made at the yards west of Twenty-Third street. He then caught up with the moving train and signaled to proceed westward. Whether this signal was seen by the deceased, standing on top of the train, is not disclosed by the evidence. Deceased was again seen standing on the top of a car some distance from the engine with his back toward the west. There was evidence of a witness that he tried to warn deceased of the danger of his position, but probably without avail. In any event, passing under the bridge at Twenty-Third street, which was too low to clear a man standing on the top of a car, he was struck, knocked off the car, and killed.

The gravamen of plaintiff's complaint is that it was negligence for the company to operate the train under the Twenty-Third street bridge, which was so low as not to clear a man standing on the top of a car, with the car descending an incline, without placing telltales to warn one so situated they were approaching a low bridge, that would not clear in standing on the top of a car as was deceased. The switches in the yard where deceased was killed all operate by semaphores moved from towers, and it is the insistence of defendant the use of telltales in a yard such as the one in question would in practical operation of the traffic obstruct the view, and by the manner in which said telltales would have to be constructed would render the operation of trains therein far more dangerous than as the yard is now...