Diggs v. Louisville & N.R. Co.

• Citation: 156 F. 564
• Decision Date: 06 November 1907
• Docket Number: 1724-1726.
• Parties: DIGGS v. LOUISVILLE & N.R. CO. (two cases). DUNNAWAY v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

156 F. 564

DIGGS v. LOUISVILLE & N.R. CO. (two cases).

DUNNAWAY v. SAME.

Nos. 1724-1726.

United States Court of Appeals, Sixth Circuit.

November 6, 1907

G. W Pickle, for plaintiffs in error.

J. H Frantz, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit to recover for the wrongful death of William Turpin through the negligence of the Louisville & Nashville Railroad Company. Against the objection of the plaintiffs in error, it was consolidated for trial with two similar cases one brought by the administrator of James Gamble and one by the administrator of W. W. Dunnaway, who met their deaths at the same time and in the same way. At the close of the testimony for the plaintiffs, the court directed the jury to return a verdict for the defendant. It is claimed the court erred in consolidating the cases and erred in instructing for the defendant.

We are satisfied that under section 921 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 685) the court had the power to consolidate these cases for trial. They involve the same transaction, the witnesses were the same, and we can see no good reason to criticise the exercise of the court's discretion in the premises.

The evidence which the court withheld from the jury showed substantially the following facts: The three young men Turpin, Gamble, and Dunnaway, were raised in Anderson county, Tenn., about 25 miles from Knoxville. They were not accustomed to railway travel. They left their homes on the 19th of February, 1906, to look up a brother of one of them, who they heard, was working some miles the other side of Knoxville. Apparently they did not find him, and on the 20th they started back to Knoxville. Late in the afternoon of that day they got on a passenger train of the defendant at Mentor, a station seven or eight miles from Knoxville. This train reached Knoxville about 6:30 p.m. There was but one station, Chandler, between Mentor and Knoxville. After leaving Chandler, the trainman announced that the next station would be Knoxville. The train, after leaving Chandler, ran along the Tennessee river for some distance, and then crossed over to Knoxville on a bridge and trestle. By this time it was quite dark. On the Knoxville end of this trestle a switch led off from the main track. At the end of this switch there was a narrow platform on the right as you approached Knoxville, which was used in connection with the switch. Beyond this platform, going in the direction of Knoxville, the trestle for some distance remained the width required for one track only, and then broadened as the switch left the main line. About 200 feet beyond the point of this switch, the main line divided into a Y; one track running to the right to the passenger depot, and the other to the left to the switching yards. It was customary to use this Y in order to change the direction of the train before running into the depot. When the train reached the trestle, it stopped presumably short of the switch. The three young men, one a boy of 15, got up from their seats in the smoker, which was in the forward part of the train next to the baggage car, and went out the front door. The station of Knoxville had not yet been called, nor any reason given them to believe that they were at Knoxville, except the fact that the announcement had been made that the next station would be Knoxville. This announcement had been made a few minutes before the train stopped. Three witnesses put the time from one to one and a half or two minutes, one says before the train reached the bridge, and several testified that the custom on the road was to announce the next station shortly after leaving the last one. Such announcement was not regarded as a call of the station, which was made subsequently when the station was reached. About 6 o'clock the next morning, on the 21st of February, a witness who passed under the trestle found the dead bodies of three young men, who were subsequently identified as Turpin, Gamble, and Dunnaway. They lay close to one another, and no footprints were near them. The court below, conceding that the deceased persons were passengers, after referring to the fact that the laws of Tennessee required the railroad company to announce the next station, stated that, if the insistence of the plaintiffs was correct, 'when the company does it, it would have to guard against anybody jumping off before the train reached the station, would have to put a man in each door, and keep them from jumping off, if the train should happen to stop for any purpose before it reached the station'; and directed a verdict in favor of the defendant in each case.

We think there was testimony from which the jury might have inferred that the three unfortunate young men were passengers, and that they alighted from the train on the trestle and met their deaths by falling from it to the place where they were found. They may have fallen directly from the train through the trestle, or from the trestle after alighting from the train, and they may have fallen from the trestle by missing their footing while trying to proceed in the direction of Knoxville after the train had passed, or by being pushed off by the train after it had got again in motion. There was no testimony showing precisely where the train stopped. There was a small platform on the right located at the point of the switch, which was used by railroad men to stand on while operating the switch. If the train stopped opposite that platform, the young men had a place to stand, but after the train passed on they would have found themselves isolated, in a dangerous position, and it would naturally have seemed necessary to them to walk on in the direction of Knoxville, whose lights they could see in the distance. If they did this, after leaving the small platform, a few steps would have brought them to the narrow single track trestle above the place they were found, and from which they must have fallen. At this point the ties were 12 feet and 10 inches in length, and a passenger car is about 11 feet, 6 inches in width. An engineer who made a survey of the track testified that a 'passenger alighting on this single track trestle might touch the edge of the ties, although I don't think he would. The ends...