Friedman v. Vandalia R. Co.

• Decision Date: 28 October 1918
• Docket Number: 5009.
• Citation: 254 F. 292
• Parties: FRIEDMAN v. VANDALIA R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F. 292

FRIEDMAN v. VANDALIA R. CO.

No. 5009.

United States Court of Appeals, Eighth Circuit.

October 28, 1918

David Goldsmith, of St. Louis, Mo. (M. N. Sale, of St. Louis, Mo on the brief), for plaintiff in error.

Truman Post Young, of St. Louis, Mo. (S. W. Fordyce, Jr., John H Holliday, and Thomas W. White, all of St. Louis, Mo., on the brief), for defendant in error.

Before HOOK and STONE, Circuit Judges, and WADE, District Judge.

STONE Circuit Judge.

Writ of error from directed verdict favoring defendant in a personal injury death claim brought by an administratrix.

The deceased was a car inspector employed by the Terminal Railroad Association of St. Louis. At the conclusion of inspections he, with two others, left the yards of the Terminal in the dark of early morning to carry the inspection reports for filing to an office some distance away. The route taken and intended to be pursued was westerly along a Terminal track, across a Terminal bridge over Cahokia creek thence a short distance further on the Terminal track to a path which led down to a street which passed near the office. About 40 feet east of Cahokia creek this track is crossed by a Vandalia track, which continues westerly across the creek on a Vandalia bridge located a few feet north of the Terminal bridge. This Vandalia bridge was built prior to the Terminal bridge and the Vandalia right of way over the creek reaches to near the north side of the Terminal bridge. There is a space upon this right of way between the two bridges which is unprotected at either bank. Upon the morning of the injury the three men had crossed the above track intersection and were approaching the Terminal bridge, which they intended to cross. Supposing that he was stepping upon a plank at the end of the Terminal bridge, the deceased mistakenly stepped into the east end of the open space between the two bridges. As correctly said by plaintiff in her statement of the case, he 'was proceeding along or near the Terminal track, with the intention of crossing the Terminal bridge; it being dark, so that he could not clearly see where he was going, he fell into this hole.'

Several questions have been presented by counsel and examined by the court, but it is unnecessary here to treat but one proposition: Did the defendant (Vandalia) owe any legal duty to the deceased to guard the east end of this opening? The duty intended and necessary to be found is one due the deceased, and one due at the time of the injury and in connection with the place and circumstances thereof.

Plaintiff bases her contention that such duty existed upon the theory that defendant was a joint user with the Terminal of a common yards at the place of the accident. The law of Illinois, the place of this injury, is that joint usage of railway property involves certain duties of care by each railway toward the employes of the other. The limits of this rule seem to be that such a railway owes to such employes the duty of ordinary care for their safety while they...