Franchina v. Chicago, B. & Q. R. Co.

• Decision Date: 22 March 1912
• Docket Number: 3,633.
• Parties: FRANCHINA v. CHICAGO, B. & Q.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 462

FRANCHINA v. CHICAGO, B. & Q.R. CO.

No. 3,633.

United States Court of Appeals, Eighth Circuit.

March 22, 1912

This was a suit instituted by Francesco Franchina, as administrator of the estate of Antonio Sirignano, to recover damages, for and on behalf of the widow and minor children of the deceased, alleged to have been occasioned by the negligence of defendant's servants and agents in the operation of one of its trains. The specific charge of negligence is that while the deceased was engaged in repair work on the track near to the village of Newport, in the state of Minnesota, the defendant propelled a train of cars along its track without giving any warning signal either by bell or whistle, or in any other manner, and thereby negligently caused the same to run over the deceased, and so injure him that he died. The defense consisted of a general denial of the allegations of negligence only.

The case was submitted to the jury on evidence tending to show the following facts: The deceased was one of a gang of 40 or 50 men engaged in repairing the railroad track running along the bluff of the Mississippi river six or seven miles south of St. Paul. The men while at work were strung along the track a distance of one-fourth to one-half of a mile. They generally worked in groups, but, on this particular occasion, the deceased was working by himself spiking rails to the ties. He was near the southern end of the force, a distance variously stated by the witnesses of from 10 to 20 rails--330 to 660 feet-- away from any group of his coemployes. While the men were so disposed along the track, a local passenger train running from St. Paul to La Crosse, propelled at a rate of speed variously estimated from fast to slow, ran over and killed the deceased while he with his back toward the train was in the act of driving home a spike. Witnesses who were standing by the side of the track as the train approached and passed them, north of where the deceased was at work, testified that no bell was rung or whistle sounded as the train advanced towards the deceased. One witness who was carrying drinking water for the workmen was on the side of the track very near to the deceased when he was struck. He testified that there was neither a bell rung nor a whistle sounded nor any other warning given of the approach of the train whatsoever. Another witness standing within 150 to 200 feet from the deceased testified that the train approached him quietly, 'making no noise at all,' and that he heard no whistle sounded or bell rung. Another witness testified that he was working 10 or 12 rails north of where the deceased was working at the time he was struck; that on former occasions the train had usually stopped near to a certain tool box some 40 or 50 rails north of that place; that, on the morning in question, it did not stop there, but went ahead until after it struck the deceased; that he noticed the engineer in charge of the train; that he had his head out of the window where he was sitting, looking back and towards St. Paul; that he heard no whistle sounded or bell rung as the train advanced. He testified that the bell had been usually rung on other mornings, but he emphatically stated that it was not rung that morning and no whistle was sounded. This witness also testified that the boss of the gang had usually warned the workmen of the approach of the train, but that, even if he hallooed on the morning in question, it was an ineffectual warning for all of the men, as they were scattered along the road for a distance of half a mile or so; and two of the witnesses for plaintiff who were nearest to him testified that the boss gave no warning to the deceased of the approach of the train. The testimony of these witnesses was contradicted in many particulars by the engineer, fireman and yard foreman of the defendant. The first two emphatically denied that there was no blowing of the whistle or ringing of the bell; but asserted that both were sounded as the train approached the deceased.

The Chicago, Milwaukee & St. Paul Railway Company had a track of its road closely parallel to that of the defendant company along the bluff at the place where the deceased met his death, and on that morning a fast mail train running from Chicago to St. Paul met the defendant's train at that place....