Duree v. Wabash R. Co.

• Decision Date: 28 March 1917
• Docket Number: 4751.
• Citation: 241 F. 454
• Parties: DUREE v. WABASH R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

241 F. 454

DUREE v. WABASH R. CO. et al.

No. 4751.

United States Court of Appeals, Eighth Circuit.

March 28, 1917

M. A Roberts, of Ottumwa, Iowa (W. W. Epps and Roberts & Webber all of Ottumwa, Iowa, on the brief), for plaintiff in error.

William McNett, of Ottumwa, Iowa (J. L. Minnis and N. S. Brown, both of St. Louis, Mo., and McNett & McNett and Walter McNett, all of Ottumwa, Iowa, on the brief), for defendants in error.

Before CARLAND, Circuit Judge, and RINER and MUNGER, District Judges.

RINER District Judge.

The plaintiff in error, hereafter referred to as the plaintiff brought this action against the defendant in error, hereafter referred to as the defendant, to recover damages for the death of her son, a boy of about 11 1/2 years old, alleged to have been caused by the negligence of the defendant. The record discloses the following facts:

On the 4th of January, 1914, Fred Craft, a locomotive engineer, and Clyde Henderson, a locomotive fireman, both in the employ of the defendant, were at Moberly, Mo., in charge of one of the defendant's engines; that this engine had been in the shops for repair, and they were taking it out on the road to 'try it out' before putting it back into regular service; that before leaving Moberly the plaintiff's son requested and was permitted by the engineer to ride on the engine; that upon leaving Moberly the engine was running backward, and as it came to the switch at Cairo, a station 6 miles distant from Moberly, it left the rails, turned over on its side, and the engineer and boy received injuries from which they both died; that the engine on which the plaintiff's intestate was riding, at his request and with permission of the engineer, was one used in the passenger service; that its maximum speed was about 60 miles an hour; that the boy was riding in the cab upon the fireman's side of the engine, and at the time of the accident was standing in front of the seat box, a place entirely safe so long as the engine remained upon the rails; that the track at that place prior to the accident was in good condition. The only conflicting evidence in the record is as to the rate of speed at which the engine was running at the time of its derailment. The fireman, who was upon the engine at the time of the accident, testified that it was running about 15 miles an hour. Other witnesses, who noticed the engine as it came into Cairo, fixed the speed at from 25 to 35 miles per hour.

The petition was several times amended. In the fourth and last amendment, filed on the 31st of August, 1915, the plaintiff states:

'Plaintiff withdraws all the allegations of her petition charging that the defendant's employes negligently induced and invited the deceased to get upon the engine; also all allegations of negligence based upon the unsafe and dangerous condition of the defendant's track, except in so far as knowledge of the condition of said track bears on the care required of defendant's engineer and fireman in running said locomotive over the same.'

'That the particular acts of negligence, inefficiency, and carelessness of the employes and agents of the defendant, upon which she seeks to predicate negligence, are that the defendant's said employes at the time well knew that the said railroad track at the time and place of the injury was not level, one side being about one inch lower than the other, and with said knowledge were running said engine backward at the time said injury was received by the deceased at the dangerous and hazardous rate of speed of 30 to 35 miles an hour; and plaintiff avers that the running of said engine backward over said track at said rate of speed was in and of itself gross negligence on the part of said employes.'

By this last amendment the plaintiff narrowed the issues, and based her right to recover upon the averments that the defendant's employes at the time of the accident were negligently running the engine backward over the track at a dangerous rate of speed, and that its derailment was caused thereby. At the close of the plaintiff's evidence, on motion of the defendant, the court instructed the jury to return a verdict in its favor.

The four assignments of error present but a single question: Was the court justified under the facts and law in sustaining the defendant's motion and directing a verdict in its favor? In determining this question the controlling feature is: Was there a duty to the plaintiff's intestate which was violated by the defendant? If there was, then the court erred in giving the instruction requested. If there was not, there is no legal liability, and the court committed no error in instructing the jury as it did.

In the case presented by this record there is no question of contributory negligence involved in the inquiry or essential to its consideration. If the defendant did not owe the duty of protection against the injury complained of, then the omission to furnish such protection does not constitute such negligence on its part as will warrant a recovery therefor against it. From the facts of the case it is perfectly plain that the plaintiff's intestate did not sustain to the defendant company the relation of a passenger, there was no contract, either express or implied, for his transportation and he was not, therefore, entitled to that high degree of care to which a common carrier is held for the safety of those who have paid for their transportation as passengers. On the contrary, we think his relation to the defendant company, whether technically so or not, was in contemplation of law that of an intruder or trespasser, and the defendant owed him no duty, except the negative one,...