Hart v. Northern Pac. Ry. Co.

• Decision Date: 30 March 1912
• Docket Number: 3,680.
• Citation: 196 F. 180
• Parties: HART v. NORTHERN PAC. RY. CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

196 F. 180

HART v. NORTHERN PAC. RY. CO. ^[1]

No. 3,680.

United States Court of Appeals, Eighth Circuit.

March 30, 1912

[Copyrighted Material Omitted]

Francis B. Hart (Thomas D. Schall, on the brief), for plaintiff in error.

N.C. Young (Ball, Watson, Young & Lawrence, on the brief), for defendant in error.

Before SANBORN, ADAMS, and CARLAND, Circuit Judges.

ADAMS Circuit Judge.

This suit was instituted by the plaintiff below to recover, on behalf of the next of kin and heirs at law of Chester B Starr, damages suffered by them by the alleged negligence of the defendant in so operating one of its trains of cars as to cause his death. The act of negligence complained of in the petition was that the defendant caused one of its west-bound passenger trains to be propelled over its main track in its yards in the city of Jamestown, N.D., 'at a high unlawful, reckless, careless, and negligent and dangerous rate of speed without any notice, signal, or warning to said deceased,' who was as alleged 'lawfully standing in between said main track of said defendant and the said side track next north thereof,' and thereby did 'violently strike said deceased in the back, and hurl him forcibly into the air, and cause said deceased to be thrown violently against a box car standing on said side track. ' The complaint further stated that, 'solely on account of the said unlawful, negligent, and careless running of said train at a high, dangerous, careless, negligent, and unlawful rate of speed without due regard to the safety of the said deceased, and on account of the negligence and carelessness of said defendant in failing to give said deceased any warning, notice, or signal of the approach of said passenger train, and through and by reason of no fault or negligence on the part of said deceased, and not otherwise, said deceased was struck by said passenger train and hurled thereby as aforesaid,' as a result of which he died. The answer denied the negligence as alleged, and affirmatively pleaded contributory negligence by the deceased. On these issues the cause was tried to a jury, and, at the close of all the evidence, the learned trial judge on motion of defendant's counsel instructed the jury to return a verdict for the defendant. Assigning that action of the court as the main reversible error, the plaintiff brings this case here for review.

The facts of the case as disclosed by the record appear to be practically uncontroverted. They are as follows: Plaintiff's intestate on June 18, 1910, shipped two car loads of live stock from Goodrich, N.D., to Chicago, billed over defendant's branch line known as 'Sikeston Branch' from Goodrich to Jamestown, and thence over its main line to point of destination. The freight train over the branch road arrived at Jamestown stockyards a little after 7 o'clock in the evening, where it had to be broken up, the stock watered, and the cars for Chicago placed in a through train going east over the main line.

The stockyards extending westwardly from the Jamestown passenger depot, a distance of about two miles, had a business or yard office located on the main line about three-fourths of a mile west of the passenger depot. The main line, on which all the traffic both freight and passenger was carried, ran through this yard east and west, and north of it and substantially parallel to it were 14 side tracks used for receiving and storing cars and making up freight trains; the first of these, called track No. 1, was about nine feet away from and parallel to the north rail of the main line. South of the main line were 3 tracks, the first of which, leading to the roundhouse, was about 50 feet from and substantially parallel to the main line connecting with it at a lead switch about 900 feet east of the yard office. South of track No. 1 were 2 other tracks. South of these was a public highway and south of it was a restaurant. The roundhouse was about 700 feet west or southwest of the yard office, and beyond it westwardly were the stockyards. Seventy feet east of the yard office on the main line was a water tank, 800 feet east of the water tank was the lead switch which took the engines off to the roundhouse, and 3,470 feet east of the water tank was the Jamestown passenger depot.

Soon after the arrival of the freight train from Goodrich at the stockyards, a west-bound passenger train, No. 5, arrived at the depot where it had to change engines before it proceeded westward through the yards. Its engine had been cut off and sent to the roundhouse, and the passenger train was waiting for another engine to pull it out on its west-bound trip. A line of freight cars stood north of the water tank on track No. 1, to which Mr. Starr's cars, which were then at the stockyards, were soon to be coupled. In this condition of things Mr. Starr, who had just come into the yards with his two cars of stock, and his helper, a man by the name of Blazing, came to the yard office, and inquired whether they would have time to get supper before their train would be made up and pull out easterwardly. They were informed they would have time, and were then told that the train their cars would be attached to was then being made up on track No. 1. A drover by the name of Dell, who had brought a car of live stock over the Sikeston Branch Road which was billed also for Chicago, having already had his supper, went down to the stockyards to attend the watering of Mr. Starr's stock as well as his own, while Starr and his helper were getting their supper. Dell had also been informed of the location of the train which was to take out their stock and of the time of its departure. While he was attending to the stock at the yards, Starr and Blazing returned to the yard office. Blazing sat down on the platform, and Starr walked down the narrow passageway between the main line and track No. 1, in an easterly direction, to a point near the water tank where the yardmaster was at work, and sought to engage him in some conversation, when he was told by him that he could not talk there; that, if there was any further business he wanted to see him about, it would have to be done at the office. The record discloses that one or two other men whose identity is not made known were walking about with Starr. At about this juncture Mr. Nelson, the conductor, who was to take out the stock train then being made up on track No. 1, passed along in a westward direction, checking up his cars, and Starr asked him how soon the stock train would move out, and he answered, 'As quick as we can get ready;' and Nelson then told him, in substance, that he had better look out for No. 5 which was soon coming. The yardmaster then started for the office, followed by Mr. Starr and the others. As they were walking westwardly toward the office in the narrow way between the main line and the freight cars standing on track No. 1, the passenger train No. 5, from Jamestown, came along running at a rate of speed estimated at about 25 miles per hour, and Starr was hit by the projecting end of the pilot beam, and thrown against a freight car standing on track No. 1, and received injuries from which he subsequently died. The others who were with him got close up to one of the freight cars and escaped injury, but according to all the proof Starr walked along apparently paying no attention to what was behind him until some shouting or signal startled him, when he suddenly threw up his face to the north, and was hit. The engineer of the passenger train testified that he saw Starr and three other men walking westwardly ahead of his train, between the main track and the first track on the north, for a distance of over one-quarter of a mile, but that he did not realize until he was within about 60 feet of Starr, that the latter was not cognizant of the approach of the train and was not going to get out of the way of danger, and that he then by outcry and otherwise did all in his power to avoid collision with him, but was unsuccessful in doing so. There was evidence tending to show that the engineer blew his whistle and sounded his bell as he approached the water tank, and there was evidence to the contrary. Mr. Dell, the drover who was accompanying Starr, testified that he was on his way eastwardly from the stockyards nearly opposite the roundhouse, a distance of some 300 or 400 feet west of the yard office, when train No. 5 approached and the accident occurred, and that his vision of the train was totally obscured by steam which enveloped the track. If there was any such enveloping steam, it could only have come from some one of the engines which were in the yard. Dell's testimony was uncertain from what engine this steam emanated, and there was much evidence that the blowing off of steam from an engine on a clear evening like that of June 18th could produce no such result as Dell testified to. All the other witnesses in the case, consisting of four, who were produced by plaintiff, and five who were produced by defendant, unequivocally contradicted Dell's testimony on the subject, and unanimously affirmed that the view of the approaching train was clear and unobstructed from the yard office eastwardly to the depot, on the evening in question, and there is no pretense that the track was not straight all the way from the yard office to the depot.

The question is whether on this state of facts the Circuit Court erred in directing a verdict for the defendant. In answering this question, we shall recognize and apply the proposition of law last affirmed by this court in the case of Franchina v. Chicago, Burlington & Quincy R.R. Co., 195 F. 462, 115 C.C.A. . . . , just decided, that, if there be any substantial evidence of a contradictory character on any decisive or material issue in the case, the...