Kansas City, Ft. S. & M.R. Co. v. Cook

• Decision Date: 05 February 1895
• Docket Number: 209.
• Parties: KANSAS CITY, FT. S. & M.R. CO. v. COOK.
• Court: U.S. Court of Appeals — Sixth Circuit

66 F. 115

KANSAS CITY, FT. S. & M.R. CO. v. COOK.

No. 209.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

This writ of error was sued out by the Kansas City, Ft. Scott &amp Memphis Railroad Company, against which company the appellee Jesse H. Cook, recovered a judgment for damages sustained by being run over by a locomotive engine while running backward in its private switching yards in the village of West Memphis, state of Arkansas. The suit was begun in a state court at Memphis, Tenn., from which the railway company, as a nonresident corporation, removed the suit to the circuit court of the United States for the Western division of the Western district of Tennessee. West Memphis is a small village, of from two to three hundred inhabitants, and is immediately on the west bank of the Mississippi river and opposite the city of Memphis. The cars of the appellant company coming from the west and northwest are transferred by a railway ferry from West Memphis to the east bank of the river. On both banks of the river were inclined railway tracks, by means of which its trains were loaded on or discharged from the steam ferry. These inclined tracks connected with switching yards on both sides of the river where trains arriving and departing were made up, and where continual switching was going on. The steam ferry was owned and operated exclusively by the railway company, and did not engage in any other business than that of transferring railway trains from one side of the river to the other. The officers of the boats were prohibited from carrying passengers other than those in the company's cars, and its servants and employes. There was a regular steam passenger ferry operated between Memphis and West Memphis for the accommodation of the general public. The defendant in error, a farmer, from the state of Mississippi, and a stranger, was, while visiting friends in Memphis, informed by them that he could pass over the river on railway transfer boats without charge, and from the west side get a better view of a great railway bridge in course of construction across the Mississippi. Acting upon this information, and wholly from motives of curiosity, he, together with some chance acquaintances, went aboard one of the transfer boats and crossed to West Memphis. His presence on the boat seems to have been unobserved, as no questions were asked him or fare or permit demanded. He then made his way through the yards of the company to a point from which he could examine the railroad bridge. When ready to return, his friends having yard, and down the incline, and onto the transfer boat. He found thereon a passenger train about to be transferred to Memphis. He was asked by the conductor of the train if he had come down on the train, to which he replied that he had not. Shortly afterwards he was approached by one of the officers of the boat, who asked him if he had come across on the boat, who, on being told that he had not, said that the boat did not take passengers, and that he could not return that way. He then asked what he must do, and was told that he would have to get off and go to the depot, where he would find a ferryboat which would take him across. He offered to pay to cross, but was told again that that boat did not take passengers across. Cook then says he asked the officer to show him the way he must go, and that the officer took his arm, and told him that he must get off, and must go up the railroad track. The west bank of the river is a low bottom, and subject to overflow. The railroad company, for its own uses, had made an embankment, which was entirely occupied by its tracks and switches. The top of this embankment was above high water. This embankment and its tracks constituted the switching yard of the company. At the time of the accident, the river was out of its banks, and there was water on both sides of the embankment. On this embankment there were four principal tracks, besides switches and spur tracks. These tracks were quite close together, there being a space of fourteen feet between the center of one track and the center of that adjoining. It was possible to walk between the tracks, there being a minimum of two feet clear space when each track was occupied by the widest cars in use. Between the outside tracks and slope of the embankment it was possible to walk in safety at some points; at others the slope of the embankment was too great. The West Memphis depot was near the northern end of this yard. The regular ferry landing was immediately in the rear of this depot. One of the streets of the village crossed this yard at the north end of the depot, and this street was the route both to depot and ferry landing behind it. There was no other way, in the then stage of the river, for one to get from the transfer boat than that by way of this embankment to the depot. When there, one could turn to the left on this traveled way and to west to the village, or turn to the left and go down to the ferry landing. The point where plaintiff was overtaken and run down was about 250 feet south of the street or way crossing the yard at depot, and on the direct and only way out of the yard, whether he wished to turn east or west when he reached this street. One of plaintiff's witnesses, acquainted with the location, in answer to a question as to whether there was any other way Cook could have gotten up to the depot except by those tracks, said: 'After he got off the transfer boat, he would have to come up the tracks to get out anywhere. ' A plank walk led from back end of depot to the ferry landing. By all the testimony it is shown that engines or trains were in almost continuous motion within the limits of this yard, and all agree that it was an extremely dangerous place for use as a walkway, especially by one unacquainted with the tracks and their uses.

E. F. Adams and C. H. Trimble (Wallace Pratt, of counsel), for plaintiff in error.

George Gillham, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

LURTON Circuit Judge, after stating the facts as above, .

The most favorable statement of the circumstances immediately attendant upon the accident is that made by the defendant in error. The statement was that while in the yard of the appellant company, under the circumstances heretofore stated, and while making his way through that yard for the purpose of reaching the passenger ferryboat, he was walking upon the most westerly of the yard tracks when he met an engine, with tender attached, coming from the direction of the depot; that he stepped off of that track to the one on his left, and had walked 20 or 25 yards in a northerly direction upon that track when some one between him and the depot, towards which he was walking, called out to him, 'The train is going to run over you;' that he immediately looked back, when he was struck and knocked down and run over by an engine moving backward, with its tender in front. He made an effort to climb or catch onto the rear of the tender, failed, and was run over, losing a leg, and sustaining other very serious injuries. At the same time a train was passing on the track he had shortly before abandoned. He says he heard no bell or whistle, and did not hear the engine approaching from the rear. The engine which ran over him, he says, was the same engine which he had met and given way to when he stepped over to the track next on his left. That engine had just brought in the Kansas City train, had been taken charge of by the roundhouse employes, cut loose from its train, and was being taken to the roundhouse. To get there, it had to be taken towards the transfer landing on the west track, to a point about midway between the depot and incline, and then switched to the track next east, and backed some 200 yards, on the track upon which Cook was walking, to the roundhouse switch. According to the theory of plaintiff tiff, this engine passed Cook, then reversed its direction, and took the track plaintiff was on, and ran him down.

Plaintiff's contention is that the railroad company was negligent in not warning him of his danger in time to get off the track. He says a switchman was seated on the rear end of the tender, with his legs hanging over, and that he should have seen the danger and given him notice. This very employe was introduced as a witness by the plaintiff, and he testifies that, as soon as he saw him on the track, he warned the engineer, but that there was not time to do more, for the rear of the tender struck him and the injury was done before anything could be done to avoid it. There was no evidence that any employe on the engine or tender was aware of the dangerous position of plaintiff until at the very moment of the collision, and no evidence that, after his danger became known, any effort to avoid injury would have averted the catastrophe. The evidence as to whether a bell was being sounded was contradictory. I any duty rested upon the railroad company to keep some one on the lookout ahead, or to keep a bell sounding, when engines or cars were being moved over its tracks and switches, then there was evidence tending to show negligence. But, if the liability of the railroad company depends upon the exercise of all reasonable precaution to avert the impending danger after it had knowledge of the dangerous position of the plaintiff, then the plaintiff made no case, and the request made to so instruct the jury, on the conclusion of all the evidence, should have been granted.

There was no question as to the duty of the railroad company at a public road crossing. This yard and these tracks were crossed by what the witnesses call a 'paper street,' near the depot. But that way was several hundred feet north of where this...