Crotty v. Chicago Great Western Ry. Co.

• Decision Date: 04 May 1909
• Docket Number: 2790.
• Citation: 169 F. 593
• Parties: CROTTY v. CHICAGO GREAT WESTERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 593

CROTTY v. CHICAGO GREAT WESTERN RY. CO.

No. 2790.

United States Court of Appeals, Eighth Circuit.

May 4, 1909

(Syllabus by the Court.)

There is no sound objection to the reading of a part only of a deposition, if what is read does not consist of mere fragmentary excerpts, a correct appreciation of which depends upon the context, and the opposite party be left at liberty to read what is omitted.

Propositions once considered and decided by an appellate court in a given case cannot be reconsidered by that court upon a second writ of error in the same case; but this does not prevent the consideration upon the second writ of such questions as may arise from a substantial change in the evidence or in the established facts at an intervening trial.

Where a brakeman, at the direction of his conductor, goes between a moving train and car, separated by a space of seven feet, for the purpose of holding a post between them so that the car can be staked over a switch, and the conductor then negligently causes the train to be moved in the direction of the car with unusual, unnecessary, and increasing force and speed, whereby the brakeman is fatally injured, the enhanced and extraordinary peril arising from the conductor's negligence is not among the risks assumed by the brakeman there being a statute attributing the conductor's negligence to the master.

Where a brakeman, at the direction of his conductor, negligently takes a position of peril between a moving train and car separated by a space of seven feet, for the purpose of holding a post between them so that the car can be staked over a switch, a position in which the brakeman is without power to take precautions for his own safety and is dependent upon such as are taken by the conductor, and the latter, with that as one of the existing and known conditions affecting his duty in the premises, negligently causes the train to be moved in the direction of the car with unusual, unnecessary and increasing force and speed, whereby the brakeman is fatally injured, the negligence of the latter in taking the exposed position is no defense to an action for his death grounded upon the supervening negligence of the conductor, there being a statute attributing the conductor's negligence to the master.

An amendment to a petition which sets up no new cause of action, demand, or charge, but merely amplifies and gives greater precision to the allegations supporting the cause of action, demand, or charge originally presented, relates back to the commencement of the action, and the running of the statute of limitations is arrested at that point.

R. P. Roedell and H. C. Kenline (Maurice O'Connor, on the brief), for plaintiff in error.

W. J. Ainsworth (A. G. Briggs, M. F. Healy, Thomas D. Healy, and Robert Healy, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and AMIDON, District judge.

VAN DEVANTER, Circuit Judge.

This case is before us a second time. It is an action by an administratrix to recover damages for the death of her intestate, James J. Crotty, which occurred while he, as a brakeman in the defendant's service, was participating in staking a loaded coal car over a switch connecting two parallel tracks, a process in which the force of a freight train moving backward on one track was applied to the coal car on the other track by means of a post held between the rear car of the train, a caboose, and the coal car. When the staking began, Crotty attempted to hold the post in a diagonal way between the nearest corners of the caboose and the coal car, but later, at the conductor's direction attempted to hold it between the coupler of the caboose and the coal car. As the staking advanced, the coal car came gradually to be in front of the caboose, considering the direction in which the latter was moving, and while they were moving in that relation, separated by the length of the post, seven feet, the post slipped and fell, the cars came suddenly together, and Crotty was crushed to death. Several acts of negligence, attributable to the defendant under the local statute, were charged in the petition, but the only ones which the evidence produced at the first trial tended to establish were that staking, although known to be dangerous, was resorted to by the conductor's direction when other and entirely safe methods of moving the car over the switch were reasonably open, and that by the conductor's direction an engine and train were used in the staking when the use of an engine alone was reasonably possible and was known to be attended with less danger. Upon that trial the plaintiff obtained a verdict and judgment, but upon a writ of error this court, being of opinion that the undisputed evidence established that Crotty had assumed the risk of injury and was guilty of contributory negligence, reversed the judgment and remanded the case for a new trial. 73 C.C.A. 147, 141 F. 913, 4 L.R.A.(N.S.) 832.

Among the acts of negligence charged in the petition were these:

'And, in pursuance of the conductor's orders, said James J. Crotty went between said cars and held and placed said post as directed, and while thus occupied, and unaware of the danger to which he was exposed, the freight train, in response to the conductor's signals, negligently backed against said post with great and unusual force, by reason of which, together with the facts aforesaid, * * * said post * * * slipped and the said cars suddenly and with great force came together, crushing said James J. Crotty without fault on his part.'

'The conductor, although knowing the peril to which said James J. Crotty was exposed while occupied between the cars, carelessly and negligently caused the train to be backed, and failed to use all reasonable efforts to protect him from injury.'

After the judgment of reversal, and as the result of proceedings which do not require special mention, the petition was amended, by leave of the court, by adding thereto the following:

'Said conductor at said time had full knowledge * * * of the exposed position of peril to which plaintiff's intestate was exposed while attempting to hold said stake, * * * and, while plaintiff's intestate had every reason to believe that said * * * conductor would so operate said train as to create the least possible chance of an injury to plaintiff's intestate, the said * * * conductor, without warning to plaintiff's intestate, and while he had every reason to believe that the speed of said train would not be increased, negligently and carelessly and without necessity therefor greatly increased the speed of said train to such an extent as to greatly increase the peril and hazard in which the plaintiff's intestate was placed, and increased the speed of said train to the extent that the same could not be controlled or stopped as readily and as suddenly as it could and would have been stopped had the rate of speed been not increased.'

The defenses interposed to the amended petition were a denial of the negligence charged, assumption of the risk by Crotty contributory negligence on his part, and the statute of limitations, the last being directed specially against what was...