Illinois Cent. R. Co. v. Jones

• Decision Date: 05 July 1899
• Docket Number: 706.
• Citation: 95 F. 370
• Parties: ILLINOIS CENT. R. CO. v. JONES et al.
• Court: U.S. Court of Appeals — Sixth Circuit

95 F. 370

ILLINOIS CENT. R. CO. v. JONES et al.

No. 706.

United States Court of Appeals, Sixth Circuit.

July 5, 1899

This action was brought to recover damages for an injury received by Keeve Jones, a minor, on the 10th day of September, 1898. The accident occurred in Fulton, Ky., where the tracks of the plaintiff in error cross State Line street. This highway is the dividing line between Kentucky and Tennessee, that part of the city south of this line being known as 'South Fulton.' The minor is a colored boy, and at the time of the accident was 10 years and 5 months old. He was at the time in a wagon with a colored man, who was employed to drive the team. It was said, and apparently agreed, in the discussion of the case, that the driver was on the way for a load of sand, and that the boy was along for the purpose of showing him the sand. The boy says he does not know whether the driver knew where the sand was or not, but does say the owner of the wagon told him to go and show the driver where the sand was. This is flatly denied by the owner of the wagon, who says he did not know the boy was with the driver at all. The decided weight of the evidence shows that when the wagon entered upon the crossing, and at the time of the collision, the boy was driving, with his face towards the driver, who was sitting on the south side or rail of the wagon bed. The boy himself testifies that he was driving, and was talking to the negro man. The defendant's flagman however, is quite emphatic in the statement that the man himself, and not the boy, was driving at the time of the collision; and there is not a suggestion in the evidence of any change in drivers while on the crossing. The boy admits that he did not stop, look, or listen for the train, and says, if he had been looking, he could have seen it as soon as the man in the wagon did. At this crossing there are four railway tracks,-- a main line and three switch tracks,-- and these switch tracks are used as a switch yard. The space between the different tracks is about six feet. The wagon was being driven from west to east, and just as it went upon the east track was struck by a freight train of 18 or 20 cars, backing south on the east, or elevator, track, and knocked across the line into Tennessee the car running over the boy, and crushing both legs necessitating amputation. The man who was with the boy jumped from the wagon, and escaped injury. The boy jumped, but was caught and run over by the cars. The railroad tracks run practically north and south, and State Line street east and west. The approach from the west is somewhat down grade, with a cut of about six feet; and just before entering upon the crossing there is a warehouse on the north side. This street is much used as a highway for travel, and the crossing much used for switching purposes. The crossing is very dangerous. The city council of Fulton had passed an ordinance requiring a watchman to be placed at this and one or two other crossings in the city, but had not required its enforcement on assurance from the superintendent of the plaintiff in error that all trains switching over the crossing would be guarded by the trainmen, and protection thereby afforded to the public. There was, at the time of the collision, no one on the crossing, charged with the duty of warning persons against coming on the tracks when a train was approaching, although it is clearly established that persons seeing the danger attempted to warn the boy by gestures and by shouting; and the decided weight of the evidence is that one or more servants of the company towards the rear part of the backing train did the same thing. It was a disputed question in the evidence whether the rear car was a box or flat car, and whether any of the employes of the company were nearer the south end of the backing train than the third car; one witness saying positively that the rear car and the one next to it were flat cars, or coal cars. The tracks west of the one on which the collision occurred were filled with standing cars on each side of the street, the trains having been cut so as to allow travel over the street. It was a disputed question whether these cars and the warehouse did not so obstruct the view of the boy, coming from the west, as to make it impossible to see the train backing until the wagon came out from behind the cars on the track next to, and immediately west of, the east track. Witnesses for the plaintiff in error virtually admit that under such circumstances, owing to the standing cars, the backing train or cars could not be seen, but say that persons on top of a box car of the backing train could be seen; and they state further that the flagman of the train, as well as another employe of the company, not connected with the operation of the train, were on a box car, and that this was the rear or south car on the backing train, which consisted of 18 or 20 cars.

The flagman testifies that when he saw the wagon coming he gave the signal to stop, and the other brakeman says this was communicated back to the engineer, who applied the brakes and that the train commenced slowing up, and stopped about 35 feet from the crossing, south. Certain parts of the flagman's testimony may be given as follows: 'Q. Were there any coal cars in this train? A. Yes, sir. Q. Where were they? A. My impression is, there were two box cars in the rear, and the coal cars were just north of them. Q. What was the purpose of your being on this rear car? A. I suppose it would be my place when we were backing up. Q. Which way were you looking as you were baking south? A. I was looking south, the way we were going. Q. Were you on the lookout ahead towards the south at the time of the accident, and before that? A. Yes, sir. Q. Did you see this negro boy on the wagon before that? A. Yes, sir. Q. Did you see this negro boy on the wagon before he came to this elevator track? A. Yes, sir. Q. What did you do, if anything, when you saw him approaching the railroad track, while in the wagon? A. I hallooed for him to look out, and to stop. Q. Did you halloo loud enough for him to have heard you before he got in striking distance of the train, while passing on the elevator track. A. I suppose people heard me a hundred yards away. Q. Did Mr. Hay halloo to him also? A. Yes, sir. Q. Did you give any signal to any other brakeman upon the train, or to the engineer to stop the train; if so, what did you do? A. I flagged the engineer down, of course. I flagged the engineer, but I can't say the engineer could see me, but I gave the stop signal. Q. What kind of a signal is the stop signal? A. When an object is on or across the track I gave signal by waving one or both. Q. Did you give this signal on this occasion? A. Yes, sir. * * * Q. When the boy came on the track, or so close to the track as to be struck by the passing train, how far was the rear car north of him? A. We were right at him. The team and wagon and cars struck crossing at same time. Q. After the car struck the team and wagon, how far did the train run before it stopped? A. One car length. Q. Had it begun to stop when it struck the wagon and team? A. Yes, sir; trying to stop all the time. Q. Was this on a level or down grade? A. A little down grade towards the south. * * * Q. Could a boy in a wagon on the west track see the moving train across these cars that were on the north side of the road? A. I don't know that he could see them or not, but he could see me by my being on the rear car. A. Did you see any one else pass the crossing there as you were backing down? A. I saw people walking across, but he was the only one in a wagon. Q. Did the boy seem to be looking out for a train? A. No, sir; his attention was attracted the other way, and he had his back to the team. Q. Was his back to the team when you first saw him? A. Yes, sir; he made no effort at all to leave the team. If he had gotten off when the driver did, or stopped the team, then he would not have gotten hurt at all. Q. Where was the driver on the wagon? A. He and the boy both seemed to be sitting on the seat. * * * Q. Didn't you say awhile ago that your train backed against the wagon just as the boy drove upon the track? A. No, sir; I said they met right on the track. They were going just about as fast as we were. A. When the boy drove from behind these cars, was the team trotting or walking? A. Walking. But you understand that boy was not driving that team. Q. Who was driving it? A. The driver; the man who left the team was driving it. Q. Which way was the driver looking when you first saw him? A. To the best I could tell you, he was looking south. Q. Were there engines south of the dirt road? A. I do not know, sir. Q. Did the driver appear to be watching out for trains there? A. No, sir; if he had, he would have stopped; but he made no halt. ' In charging the jury the circuit judge said, it was in evidence by the testimony of one of defendant's witnesses that it was the custom of the company, when making a crossing to send a flagman to flag the crossing when they went down, and to stay on the crossing, and warn the people away. The following occurs in the testimony of the conductor: 'Q. Did you have any of your men at or near that crossing, on the ground, at the time of this accident? A. Well, my flagman told me that he would look out for the hind end. He is supposed to have been there. ' Such a habit was quite consistent with, if not required by, the promise made that the public would be protected at the crossing by the trainmen, instead of a watchman. There is a curve in the east track on which the train was backing, and the flagman says he was about 80 feet from the crossing when the boy was first observed. A freight car is 35 or 40 feet in length, and plaintiffs' witness Hay,...