Illinois Cent. R. Co. v. Warren

• Decision Date: 31 December 1906
• Docket Number: 1,533.
• Parties: ILLINOIS CENT. R. CO. v. WARREN.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F. 658

ILLINOIS CENT. R. CO. v. WARREN.

No. 1,533.

United States Court of Appeals, Fifth Circuit.

December 31, 1906

This is a suit brought originally by James Warren against the Illinois Central Railroad Company to recover damages for personal injuries received under the following circumstances as detailed by himself on the witness stand:

'Q. Is this James Warren?

'A. Yes, sir.

'Q. Now, you speak to the jury over here, these gentlemen sitting in that box. Where do you live, Mr. Warren?

'A. I live in Pontoc county, close to Thaxton, a mile the other side of Thaxton; what they call 'Butter Milk Springs.'

'Q. Are you the plaintiff in this case against the railroad company?

'A. Yes, sir.

'Q. Just tell these gentlemen here how you came to bring this suit, and what caused this. Did you have anybody in your employ? If so, who?

'A, Yes, sir; I had a nigger, Andy McGlon.

'Q. Where were you living when you had him in your employ?

'A. A mile and a half the other side of Thaxton; the other side of Cain Creek.

'Q. How old are you, Mr. Warren?

'A. Thirty-two years old, going on 33.

'Q. When were you hurt by the railroad company?

'A. Last February, a year ago.

'Q. What was your occupation at the time you were hurt?

'A. Farming.

'Q. Have you any family?

'A. Yes, sir.

'Q. What?

'A. My wife and two children.

'Q. The little fellows here?

'A. Yes, sir.

'Q. Where did you go that day?

'A. Taylor's depot.

'Q. What did you go for?

'A. I went after Andy McGlon, that nigger.

'Q. Now, you went there after Andy. Do you know what day of the week that was?

'A. Tuesday.

'Q. Well when you got down there, Mr. Warren, what did you do at Taylor? Did you get him or not?

'A. Yes, sir.

'Q. Anybody with you?

'A. Yes, sir.

'Q. Who?

'A. J. H. Kelly.

'Q. Is he here now?

'A. Yes, sir.

'Q. Well, did he come or not with you from Taylor's?

'A. Yes, sir.

'Q. You came from Taylor's here. Who came with you on that trip?

'A. Me and Andy McGlon and J. H. Kelly.

'Q. What occurred, if anything, when you were nearing the station of Oxford? Tell the jury now about that in your own way.

'A. Well, the porter came running through the train hollowing 'Oxford!. Oxford!.'

'Q. What porter?

'A. The nigger porter.

'Q. Porter of what? Train porter, or what?

'A. Yes, sir; the train porter.

'Q. Go on, now. He came through hollowing 'Oxford!. Oxford!.'

'Q. Were you in the smoking compartment, or negro coach, or ladies' coach, or where?

'A. I was in one part of the smoker. There is a partition in the car there.

'Q. You were in which one?

'A. I was in the back part of it, and I got up and went in where the nigger was, in the coach where the niggers were; and I told him to get up, that we were at Oxford now, and I was fixing to get off, and I walked to the door, and the nigger gets up and follows me.

'Q. Where was Kelly?

'A. Just behind the nigger.

'Q. How close was he there?

'A. He was right there behind the nigger, and the nigger was right at me.

'Q. Did you see them?

'A. Yes, sir.

'Q. Now, when you got to that door, was that the front end or the back end of that car?

'A. The front end.

'Q. Of the car?

'A. Yes, sir.

'Q. Had you passed the overhead bridge here south of the depot at Oxford when you got there to the front door?

'A. Yes, sir; it had passed there.

'Q. Passed the bridge?

'A. Yes, sir; and I opened the train door with this hand.

'Q. Which hand is that?

'A. The left hand; and I caught the facing of the door with this hand.

'Q. That is your right hand?

'A. My right hand; and I stepped with my left foot out in front of the door with my right foot on the door facing, standing, there waiting for it to stop for me to step off, and the nigger porter run against me and knocked me off.

'Q. Did he have anything in his hand?

'A. He had a lantern; a light.

'Q. Did you see him waving that, or anything of the sort?

'A. Yes, sir; he was waving a light and hollowing 'Oxford!.'

'Q. You say he knocked you off?

'A. Yes, sir.

'Q. Did you strike anything when you went off?

'A. Yes, sir; hit my head on the switch.

'Q. Struck your head against the switch?

'A. The switchboard, they said that's where I hit. I don't recollect nothing about it after I got knocked off.

'Q. You say the porter with that lantern in his hand ran against you and pushed you off?

'A. Yes, sir; he run against me and knocked me off.

'Q. What were you doing at the time?

'A. I was just standing still, perfectly still, with my hand on the facing of the door.

'Q. You say he called the station out how many times?

'A. He called it out two or three times. He called it out as he went through, and he called it out as he came back through.

'Q. And that's the time you were taking this Andy McGlon out at the front end?

'A. Yes, sir.

'Q. And he run against you and knocked you off?

'A. Yes, sir; he run against me and knocked me off.'

On cross-examination he testified:

'Q. Now, Mr. Warren, who went with you, did you say, to Taylor's?

'A. Mr. J. H. Kelly.

'Q. What did you go there for?

'A. Andy McGlon.

'Q. What had Andy McGlon done?

'A. I had him hired, and Andy went off and never come back, and I went after him.

'Q. Well, you got him, did you?

'A. Yes, sir.

'Q. And you three came back on the train?

'A. Yes, sir.

'Q. When you got on at Taylor's depot, you and Mr. Kelly both got on the train with Andy in the colored coach?

'A. No, sir; we didn't.

'Q. Are you sure about that?

'A. Yes, sir; I am sure about it. I went in the colored coach with him, but I went out.

'Q. How came you to go out?

'A. The conductor asked me did I have him under arrest, and I told him 'No'; that I did not.

'Q. What then?

'A. I had him because he was owing me and had run off from me.

'Q. Why did you get in the colored coach with him?

'A. Well, I wanted to keep him with me. I didn't want him to have any chance to get away from me.

'Q. You were, then, guarding him, were you?

'A. Yes, sir.

'Q. You were watching him pretty close, too, weren't you?

'A. Yes, sir.

'Q. When you got to Oxford and the station was called, you were then riding in the rear part of the coach, the smoking compartment?

'A. I was back in the white coach.

'Q. The colored coach where you went first and where Andy stayed was divided into two compartments, was it not?

'A. Yes, sir.

'Q. The front part of the coach was for colored passengers?

'A. Yes, sir; and one part of it was used for the whites.

'Q. For a smoking car, was it?

'A. It had white people in there. I don't know what it was used for.

'Q. Now, when the conductor asked you if Andy was a prisoner and you told him 'No', he told you to get back in the other coach, didn't he; that you couldn't ride in the colored coach?

'A. Yes, sir.

'Q. And when the station was called out you got up and went out of the white people's coach through the colored coach to the front door?

'A. Yes, sir.

'Q. Why did you do that?

'A. I done that because I wanted to get off and get away as quick as I could.

'Q. Wasn't it easier to get off at the end of the coach in the part that you were in, and isn't that the place that people usually get off out of that part of the coach?

'A. (No answer.) 'Q. Isn't it true that people in that part of the car riding there usually get off at the rear end of that coach, at the end between that and the ladies' coach?

'A. I don't know much about that part of it. I generally get off at the front end of the car.

'Q. Even if you have to go no further to do it, and even if you have to go through the colored coach to do it, isn't that true?

'A. No, sir; I wouldn't have went through the colored coach if I hadn't had him there.

'Q. What 'him' did you have there?

'A. I went through there after my nigger.

'Q. And you went to the front door to be there when he got off, isn't that true?

'A. I went to the front door to be with him when he got off.

'Q. To keep him from escaping?

'A. Well, I don't know as he would have run off, but I didn't want to give him no chance to get away from me. It was dark.

'Q. And that is why you went that way?

'A. Yes, sir.

'Q. Now, this colored porter, you say he came first from the colored coach into the white coach calling out the station?

'A. Yes sir.

'Q. Said, 'Oxford!. Oxford!. all out for Oxford!.'?

'A. 'All out for Oxford!.'

'Q. And you got up and preceded him back to the front end, didn't you; went ahead of him?

'A. No, sir.

'Q. Well, who got there first to the front end of the car?

'A. I got there first.

'Q. Then the colored porter came into the front end of the car after you did?

'A. Yes, sir; he came running right in behind me.

'Q. He was running, was he?

'A. He wasn't you (to) say running. He was trotting.

'Q. With a lantern in his hand.

'A. Yes, sir; with a light in his hand.

'Q. What did he do when he got to the door?

'A. I was still standing in the door, right foot on the facing of the door, and left foot on the platform, and right hand on the facing of the door, waiting for the train to stop at the station and to step off, and he run against me and knocked me off.

'Q. Well, what was he doing? You said something while ago about his signaling?

'A. He was waving his little light, or little lantern.'

Warren's brother-in-law, J. H. Kelly, corroborated Warren's evidence, and further testifies that after Warren was knocked off the train he, Kelly, ran out of the door and ran to the bottom of the steps and stood there until the train slowed up and he got off.

The railroad company pleaded the general issue and contributory negligence. On the trial in the court below, after all the evidence was offered, counsel for railroad company moved the court for a peremptory charge to...