Gulf, C. & S.F. Ry. Co. v. James
| Decision Date | 01 January 1891 |
| Citation | 48 F. 148 |
| Parties | GULF, C. & S.F. RY. CO. v. JAMES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. L Jackson, E. D. Kenna, and Adiel Sherwood, for plaintiff in error.
W. A Ledbetter and O. W. Patchell, for defendant in error.
Before CALDWELL, NELSON, and HALLETT, JJ.
This was an action brought to recover damages for personal injuries sustained by the plaintiff below through the alleged negligence of the railway company, and for exposure by reason of being compelled to leave the section boarding-house of the company after being injured. On the trial a verdict was rendered against the company for the sum of $2,750.
The facts as they appear in the bill of exceptions are these: The plaintiff below, Phillip R. James, was a sectionman employed by the railway company, working on its road near Berwyn station, in the Chickasaw Nation, Indian Terr. He was injured on July 12, 1890, while aiding in unloading a hand-car. The freight train bringing this car stopped about 3 1/2 miles from this station, opposite the place where James, with three other section hands, were eating their dinner, and a road-master, by name Jim Connors, came to the men and said 'We got a hand-car to unload for you boys. ' He asked where the rest of the men were, and, on being informed, gave orders to unload the car. Six sectionmen, four trainmen, the section foreman, and the road-master assisted in unloading. The road-master gave the sectionmen instructions to unload, and some of them opened the door, and went into the freight-car, and set the hand-car in a position on one side, and slid it out of the door, so that the men outside could get a good hold. As the hand-car was partly out, and nearly all the weight rested upon the shoulders of James, he informed the men, and some came to his assistance, and let it down about half way to his waist, and Jim Connors, the road-master, who had hold of the hand-car, assisting in unloading, gave an order, 'Let her go,' and the hand-car turned over and fell upon James, injuring his back. The character of the ground where the hand-car was unloaded was well known to James, and there is no evidence that it was dangerous to unload it at that place, but only inconvenient, as no depot platform was there. The car was furnished for the use of the sectionmen to carry them to and from their homes; and there is no evidence in the case to show that James was carried beyond his employment when, in obedience to the orders of the road-master, he went to aid in unloading it.
The specific acts of negligence charged in the complaint are: (1) That Jim Connors, a road-master of the railway company, who ordered James to assist in unloading the hand-car, was guilty of gross negligence and carelessness in selecting a place to unload the same where there was no depot platform; (2) by commanding the men assisting in unloading to turn the car loose while James was in such a position that he could not prevent its falling upon him.
The record furnished is voluminous, made so by the unnecessary repetition therein of the same deposition taken and read on the trial, and other proceedings prior and subsequent thereto, and also by the assignment of errors, 58 in number. Most of them are trivial, and indicate that proper care and attention were not given by counsel in the preparation of the case. A few are meritorious: It is urged that the court erred in deciding that it had jurisdiction of the case, and permitting the plaintiff below to amend the summons. The original complaint was filed January 17, 1890, in the office of the clerk at 'Ardmore,' where the court is held for the third judicial division, and on the same day a writ of summons was duly issued to the marshal, and returned with an indorsement thereon, 'Personally served on an agent of the railway company at Ardmore, Indian Territory. ' This summons commanded the defendant to answer on the first day of the next March term, 'a complaint filed against it in said court by Phillip R. Jones, and warns it that upon failure to answer the complaint will be taken for confessed. ' A motion was made and filed on the first day of the March term to quash the writ of summons, which was withdrawn...
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