Delano v. Peirce

• Decision Date: 04 August 1915
• Docket Number: 4197.
• Citation: 225 F. 976
• Parties: DELANO et al. v. PEIRCE.
• Court: U.S. Court of Appeals — Eighth Circuit

225 F. 976

DELANO et al. v. PEIRCE.

No. 4197.

United States Court of Appeals, Eighth Circuit.

August 4, 1915

Rehearing Denied October 11, 1915.

John Lee Webster, of Omaha, Neb. (James L. Minnis, of St. Louis Mo., on the brief), for plaintiffs in error.

M. F Harrington, of O'Neill, Neb. (Dunham & Aye, of Omaha Neb., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

This is a suit for personal injuries. Plaintiff below, Peirce, was a passenger on the Wabash Railroad in charge of the defendants as receivers, traveling from Centralia to Moberly, Mo. He was riding on a limited passenger train, which was running at about 50 miles an hour. There was evidence that it swayed badly, owing to the condition of the track. It passed through the town of Rennick without stopping. At or about that point the window opposite which the plaintiff was sitting was crushed in. Two other windows on the same side of the car were destroyed, and the frame of one of them broken. Plaintiff's evidence tended to show that the entire windows were knocked out. After the accident the car was searched, and no missiles were found in it which could have caused the injury. There was evidence tending to show that at the time of the accident the train was passing a freight train on the siding at Rennick. Plaintiff himself probably jumped into the aisle as the result of the shock, and received injuries which rendered him unconscious. The plaintiff recovered judgment, and defendants bring error.

The complaint charges that the train was negligently operated, so as to cause the car suddenly to lurch and sway violently from side to side, and that through the carelessness of the defendants the train collided with some object on defendants' right of way and under their control.

At the close of the evidence defendants moved for a directed verdict, upon the ground that there was no substantial evidence tending to show that the accident was caused through any fault of theirs; that whether the accident was caused by a missile hurled by some miscreant, or was caused by some object adjacent to the track upon which the train was running was a mere matter of conjecture. In support of this motion counsel cites a list of cases, of which Pennsylvania Railroad Co. v. McGaffrey, 149 F. 404, 79 C.C.A. 224 Thomas v. Pennsylvania & Reading R.R. Co., 148 Pa. 180, 23 A....