Iowa Cent. Ry. Co. v. Walker

• Decision Date: 26 February 1913
• Docket Number: 3,838.
• Citation: 203 F. 685
• Parties: IOWA CENT. RY. CO. et al. v. WALKER. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

203 F. 685

IOWA CENT. RY. CO. et al. v. WALKER. ^[1]

No. 3,838.

United States Court of Appeals, Eighth Circuit.

February 26, 1913

George W. Seevers and W. H. Bremner, both of Minneapolis, Minn., and McNett & McNett, of Ottumwa, Iowa, for plaintiffs in error.

S. V Reynolds and John N. McCoy, both of Oskaloosa, Iowa, for defendant in error.

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

WM. H MUNGER, District Judge.

This action was brought by the defendant in error, who will be designated as plaintiff, against plaintiff in error, who will be designated as defendant, to recover for an injury sustained by being struck by the engine of defendant's train. It appears that plaintiff was in the employ of defendant as telegraph operator at New Sharon, Iowa, and also assisted the station agent in and about handling the baggage receiving the same from trains, and delivering the same to trains. The defendant's railroad track ran practically north and south on the east side of the depot; there being a platform between the depot and the tracks. A freight train from the north was about two hours late. Plaintiff inquired of the dispatcher where the train was, and was informed it had not yet reached Searsboro, a station about eight miles north of New Sharon. Plaintiff then went out to a baggage truck standing close to the edge of the platform next to the track to the northeast of the depot, took a hand grip off handed it to a lady, had a little conversation with a gentleman, returned to the truck, pushed it along on the platform to the south, with a view of taking the truck to the west side of the depot, where the train of another road was soon expected. There was snow on the platform, varying in depth, according to the evidence, from three to eight inches, the snow had been tramped down some, and a path had been shoveled down to the edge of the platform. Plaintiff, to avoid the snow, wheeled the truck close to the east edge of this platform. Just about as he reached the southeast corner, and while turning or about to turn the truck to the west, he was struck by this freight train coming on the defendant's track from the north, and sustained the injuries complained of. He alleged in his petition negligence of the defendant in permitting the accumulation of snow upon the platform, the running of the train at a negligent rate of speed, failing to give any signal by blowing the whistle or ringing the bell, and further alleged negligence upon the part of the defendant, in that, after the engineer discovered him in a place of peril, by the exercise of ordinary care, he could have avoided the injury.

The trial court, in its charge to the jury, eliminated all questions of negligence excepting the latter, saying to the jury:

'But, as I have already said to you, down to the time he was within the danger limit, in my judgment, there is nothing to be considered by you. Now, after he was within the danger limit, could he, by the exercise of diligence, have been seen by the engineer to be inside of the danger limit? Then, from that point, had this engineer exercised care and freedom from negligence, as he ought to do, could he then have averted the injury? If not, then your verdict will be in favor of the company. If he, the engineer, could have averted the injury after he saw the hazardous position in which the plaintiff had placed himself, then you will find a verdict for the plaintiff.'

This instruction was faulty, in that it submitted to the jury the question as to whether or not, in the exercise of diligence on the part of the engineer, he could have discovered that the plaintiff was inside the danger limit. The instruction in...