Kansas City, Fort Scott & M.R. Co. v. Stoner

• Decision Date: 01 February 1892
• Citation: 49 F. 209
• Parties: KANSAS CITY, F.S. & M.R. CO. v. STONER.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F. 209

KANSAS CITY, F.S. & M.R. CO. v. STONER.

United States Court of Appeals, Eighth Circuit.

February 1, 1892

C. H Trimble, for plaintiff in error.

Joseph W. Martin, for defendant in error.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.

THAYER District Judge.

The defendant in error brought suit against the Little Rock &amp Memphis Railroad Company (hereafter called the 'Little Rock Company') and the Kansas City, Fort Scott & Memphis Railroad Company (hereafter called the 'Kansas City Company ') for personal injuries sustained in consequence of a collision between trains of the respective companies at a crossing of the two roads in the state of Arkansas, a few miles west of Memphis, Tenn. A westward-bound passenger train of the Little Rock Company was going over the crossing about 6:30 P.M. on July 9, 1890, when it was run into by a southward-bound freight train of the Kansas City Company, and the defendant in error, who was a passenger on the Little Rock Company's train, sustained injuries for which a jury awarded him damages in the sum of $3,500. No further statement of the circumstances attending the collision is deemed necessary, as it is not claimed that the case should have been withdrawn from consideration of the jury. The trial resulted in a verdict exonerating the Little Rock Company from all liability, but holding the Kansas City Company responsible in the sum above stated. The errors assigned relate exclusively to the charge of the lower court, and its refusal to give certain requests asked by the Kansas City Company. We proceed to consider the several assignments in the order in which they have been stated by counsel.

The first error assigned is the refusal of the circuit court to give the following instruction, which was asked by the plaintiff in error:

'It was the duty of the employes operating the passenger train to come to a full stop within a reasonable distance of the crossing, and to both look and listen for any train that might be approaching it on the other road. It was also their duty, after stopping and looking and listening, to approach the crossing with caution, keeping a vigilant lookout to see or hear trains that might be on the other road. If the engineer saw a train on the Kansas City road before or at the time his engine reached the crossing, it was his duty to observe it closely, and determine whether it was in motion, and be certain that it would not collide with the train which he was pulling before he proceeded over the crossing, or drew the cars containing the passengers onto the track. If he failed in the performance of any of these duties, it was negligence for which the Little Rock & Memphis Railroad Company would be liable.'

We are of the opinion that the Kansas City Company is not entitled to complain of the refusal to give the foregoing request, even though we concede that it properly describes the various precautions which the persons in charge of the passenger train should have taken. The case was submitted to the jury under directions from the court which properly defined the relation existing between the defendant in error and the Kansas City Company, as well as the degree of care that the latter company was bound to exercise when its freight train approached the crossing. Under such instructions, correctly defining the duty of the plaintiff in error, the jury have found that the collision was the result of its negligence.

It may be that the Little Rock Company was equally culpable, or that the higher degree of care it owed to the defendant in error by reason of his being a passenger on its train, would have warranted a verdict against it as well as against the Kansas City Company, and that such verdict would have been rendered had more specific instructions been given. But this plea cannot avail the plaintiff in error, for the reason that it is liable for all the injuries the defendant in error has sustained, if its negligence directly contributed to the collision, and that it did so contribute has been established by the verdict of the jury under instructions correctly defining its duty, as to which no exception was taken. It is to be observed that the request preferred to the lower court by the plaintiff in error related wholly to the degree of care its co-defendant should have exercised. It was not framed with a view of elucidating its own duty, but for the obvious purpose of casting as large a measure of responsibility as possible on the Little Rock Company. If the circuit court had defined the duty of the ...