Fitchburg R. Co. v. Nichols, 228.

• Decision Date: 11 February 1898
• Docket Number: 228.
• Citation: 85 F. 945
• Parties: FITCHBURG R. CO. v. NICHOLS.
• Court: U.S. Court of Appeals — First Circuit

85 F. 945

FITCHBURG R. CO. v. NICHOLS.

No. 228.

United States Court of Appeals, First Circuit.

February 11, 1898

George A. Torrey, for plaintiff in error.

George A. Blaney and William S. B. Hopkins, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

This is an action to recover damages for personal injuries received by the defendant in error, Nichols, while traveling on a cattle train as a drover in charge of stock on the train. The declaration contains three counts for the same cause of action, in each of which it is alleged that Nichols 'while in the exercise of due care,' was injured etc. When the train arrived at a station known as 'Baldwinsville,' it stopped for water. This was taken from a spout between the tracks. The spout swung on a pivot so that when not in use, and in its proper place, it was parallel to the tracks. When used, it was moved by the fireman to a right angle to the tracks. It was the duty of the fireman when sufficient water had been taken, to push the spout back to its proper place. There was evidence tending to show that on this occasion he failed in his duty, and pushed the spout only partially back, leaving it projecting. Nichol's testimony was substantially as follows:

'The train arrived at Baldwinsville at about twenty or twenty-five minutes after nine o'clock in the morning. Before arriving at Baldwinsville, I asked the conductor of the train when I should have time to look over the cattle. He said at the next stop that I should have ample time to look after them. He said nothing more about the time of the stop than that he had to take orders, and water, and take coal, for aught I know. This conversation was a little ways before we reached Baldwinsville. I was never over this portion of The Fitchburg Railroad before. When the train stopped, I got out of the car, caboose, or whatever you call it, and went along looking at the cattle. I saw some that were down in bad shape, and went to work to get them up. One was lying down flat and others atop of it, and I was at work at them getting them up at the time the train started. It started along, and I kept walking along, kept at work at them, getting their heads up, so that they would ride better. I kept walking along until I found the train was pulling out. I heard no whistle blown or bell rung, indicating that the train was to start. I received no notice from the conductor or any other of the train hands that the train was about to start. I must have been about half way up the train, I should think, when it started. I began to walk back to get onto the caboose, but the train was pulling out so fast that I found I could not make the caboose and get on, and so I did as we always do,-- I got up on the side of the car. I laid my pole across the bumpers at the end of the car. With my left hand I took hold of the handle at the end of the car and stepped onto the step on the outside of the car. I put my left foot onto this step, and stepped with my right up onto the floor of the car where the cattle were standing that projects out a fe inches, and then made a swing to get round onto the ladder that runs up on the end of the car. In turning around to get onto this ladder, as I stepped onto it, I was struck in the head. I do not know what struck me. The first think I knew after that I was lying on my back in the car, and a couple of men were standing over me.'

On cross-examination he said:

'I always ride in the caboose if I can. The caboose is the car on the rear of the train, and has seats in it, such as they are, for cattlemen and for brakemen who occasionally ride in it. That is where I should have gone if there had been time to get there. When I got off, I intended to get back into the caboose when I had performed my duties at the station and the train was ready to start. I should think the train stopped fully ten minutes at Baldwinsville. It is a small place, a country village. Before I went to work on the cattle at Baldwinsville, I carried some food to the man in my employment, who was on the forward end of the train. I walked up to give him the bag, and then I went to work at my cattle.'

A witness testified that she saw the spout strike Nichols, and throw him from the train.

The shipper of the cattle signed a special contract for their transportation, and the defendant below relies on the following provision found in it:

'Whenever the person or persons accompanying said stock, under this contract, to take care of the same, shall leave the caboose, and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury from whatever cause; and neither the said carrier nor its connecting carriers shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract.' Other provisions of the contract, necessary to a full understanding of the case, are as follows:

'The said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * * Said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock, and said carrier or any connecting carrier shall not be liable on account of the escape of any of the said stock from said car or cars. The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock occasioned by any or either of the following causes, to wit: overloading, crowding one upon another, kicking or goring, suffocating, fright.'

Nichols must...