Illinois Cent. R. Co. v. Nelson

• Decision Date: 26 February 1913
• Docket Number: 3,843.
• Parties: ILLINOIS CENT. R. CO. v. NELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F. 956

ILLINOIS CENT. R. CO. v. NELSON.

No. 3,843.

United States Court of Appeals, Eighth Circuit.

February 26, 1913

F. H Helsell, of Ft. Dodge, Iowa (Helsell & Helsell, of Ft. Dodge Iowa, Grimm & Trewin, of Cedar Rapids, Iowa, and Blewett Lee and W. S. Horton, both of Chicago, Ill., on the brief), for plaintiff in error.

M. J Wade, of Iowa City, Iowa (Wade, Dutcher & Davis, of Iowa City, Iowa, Ely & Bush, of Davenport, Iowa, and V. L. Belt of Waterloo, Iowa, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and WM. H. MUNGER and TRIEBER, District judges.

WM. H MUNGER, District Judge.

The plaintiff (defendant in error) was in the employ of the defendant (plaintiff in error) as a brakeman. In the forenoon of January 1, 1911, he went to his train in the yards at Waterloo, Iowa, to assume his duties on that train. After reaching the train, which stood on track No. 4 in the yards, he discovered a couple of hot boxes, and went from there to the north to the icehouse of the company, to obtain a cake of ice, to be used in cooling the boxes and to take upon the train for a like purpose, in so doing crossing tracks 5, 6, 7, and 8. Returning from the icehouse with his ice, tracks 8 and 7 having standing cars on them, he threw his ice through under the cars and climbed over the drawbar; reaching track 6, there was an opening between cars of about 10 feet, through which he passed, and then turned eastward, without looking or listening for any moving cars, though he knew that switching was being done there. After proceeding between tracks 6 and 5 a distance of about 15 or 20 feet, he was struck by a car and received the injuries complained of. He alleges that, at or about the point where he was struck by the car, the defendant negligently permitted an accumulation of cinders, ice, and snow between said tracks several inches in height and about 10 feet in length; that he slipped upon this pile of cinders, covered with ice and snow, and, because of such slipping, was struck by the car in question. The train upon which he was employed the evidence clearly shows to have been engaged at the time in interstate commerce. He, being a brakeman upon said train, was an employe engaged in interstate commerce, and the act of Congress known as the 'Employer's Liability Act' (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (U.S. Comp. St. Supp. 1911, p. 1324)), governs and determines the rights of the parties. Plaintiff recovered a judgment, and defendant has brought the case to this court for review.

As before stated, plaintiff was aware of the movement of engines and cars in the yards. He crossed the several tracks, turned towards the east, did not stop or look or listen to ascertain whether any cars wee approaching towards him, and proceeded to the eastward some 15 or 20 feet, when struck by the car in question, moving at the rate of about 4 miles per hour. After the close of all of the evidence, the defendant requested, among others, the following instructions:

'Instruction 12: Any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains; and if, in disregard of this duty to his own safety, he steps upon the track without looking or listening, he is guilty of negligence.'

'Instruction 20: When the plaintiff came around the car across the track No. 6, if you find from the evidence that he turned directly in an easterly direction to go down to his train, and did not look or listen for any train or car that might be approaching within the distance in which he was at that time at any place between the track, such failure to look or listen would be negligence on his part.'

'Instruction 39: A person approaching, or going upon or near, a railroad track upon which trains are in the habit of running, is bound by law to stop, and look, and listen for approaching trains, providing that he has any reason to believe that there may be such approaching; and the fact that he was an employe did not release him from the necessity of exercising reasonable care under the circumstances for his

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