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

• Decision Date: 06 March 1894
• Docket Number: 137.
• Citation: 60 F. 999
• Parties: KANSAS CITY, FT. S. & M. R. CO. et al. v. KIRKSEY.
• Court: U.S. Court of Appeals — Sixth Circuit

60 F. 999

KANSAS CITY, FT. S. & M. R. CO. et al. v. KIRKSEY.

No. 137.

United States Court of Appeals, Sixth Circuit.

March 6, 1894

Holmes Commins, E. F. Adams, C. H. Trimble, and Wallace Pratt, for plaintiffs in error.

G. P M. Turner and John R. Flippen, for defendant in error.

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

TAFT Circuit Judge.

This is a proceeding in error, brought by the Kansas City, Ft. Scott & Memphis Railroad Company, hereafter to be referred to as the Kansas City Company, and the Newport News & Mississippi Valley Company, hereafter to be referred to as the Newport News Company, to reverse a judgment against both companies in favor of Rosina Kirksey for damages for the death of her husband, occurring, as she alleged, by the wrongful act of the two companies.

The court below held that by the undisputed facts in the case it was conclusively shown that both companies were guilty of negligence, and the deceased was not guilty of contributory negligence, and therefore directed a verdict for plaintiff leaving to the jury only the question of damages. The main controversy arises over the action of the court in thus withdrawing the questions of negligence and contributory negligence from the jury.

The facts of the case as developed by the evidence were as follows: Between the city of Memphis and the Mississippi river the parallel tracks of three different companies run north and south, crossing at right angles the streets of the city which extend to the river. The west track is that of the Kansas City Company, the middle track is that of the Belt Line Company, and the east track is that of the Newport News Company. A little to the north of Jefferson street, which is one of the streets crossed by these three tracks, there is a spur or switch track, called the 'Little Rock Switch,' which, after connecting with the Newport News track, runs up a grade, forming an embankment, immediately to the right of the Newport News track, about three or four feet high. Archibald Kirksey, the deceased, was a switchman upon the yard switch engine of the Kansas City Company. Between half past 5 and 6 o'clock on the morning of the 8th of July this switch engine drew out a half dozen freight cars from the Newport News freight station, to switch them to another part of the railway yard. Kirksey's place was on the front footboard of the engine. His duty is described as that of 'following' the engine. His station was on the right-hand side, where the engineer could see his signals. His duty was to throw switches necessary for the shifting of trains, and to observe all obstructions upon the track, and signal to the engineer of their presence. The train passed over from the Kansas City track to the Newport News track as, by arrangement between the companies, it had the right to do, and was in the habit of doing. It was broad daylight, but was raining some. There had been a moderate fall of rain the night before, and a particularly heavy fall somewhere between 4 and 5 o'clock. As the engine crossed two or three of the streets, before reaching Jefferson street, it had to run through water and debris, which concealed the track. Upon approaching Jefferson street an engine was seen standing still at the crossing on or near the Belt Line track. It had, in fact, been derailed, just as the Kansas City engine was soon to be. A switchman upon the Belt Line engine motioned to those upon the Kansas City engine, and pointed to the Jefferson street crossing of the Newport News track. No attention was paid to this by any one on the latter engine. In running over the Jefferson street crossing, the engine was derailed and ran into the Little Rock switch embankment, already referred to. Kirksey, who sat upon the front footboard of the engine, was crushed between the embankment and the steam chest of the engine, and was instantly killed. A pile of sand had been left upon the ground just east of the Newport News track and in the corner made by that track and Jefferson street, and the heavy rain had swept the sand down in between the rails of the track, so as to leave nothing but the tops of the rails visible. The action of the water was such as to harden the sand between the rails so that it lifted the flanges of the engine wheels from the rails, and threw the engine off the track. The section boss of the Newport News Company, whose duty it was in person or by subordinates to examine the track, and keep it clear from obstructions, had been over this crossing at 12 o'clock the night before, in company with a subordinate called a 'track walker,' and found the track unobstructed. About 4 o'clock that morning a train of cars had safely passed over Jefferson street on the same track, and the engine returning, without cars, some 20 minutes later, found no difficulty in recrossing. The heavy fall of rain already mentioned occurred shortly after. The result of this heavy rain was to undermine a large wall, which stood in the passenger station of the Newport News Company, and to throw it down upon a passenger train standing near. Many of the passengers were buried in the debris, and several were killed. The section boss and all his force were at once summoned to save the living and disentomb the dead, and they were busily engaged in this work at the time of the derailing of Kirksey's engine. The engine was running at a speed not exceeding 5 or 6 miles an hour at the time of the derailment, and it could have been stopped within 10 or 15 feet, had Kirksey signaled to the engineer to do so, or had the engineer himself observed any obstruction upon the track. The place, where the pile of sand was, belonged to the city of Memphis. The sand had been there a month, having been placed there without the agency or authority of the railway companies. Slight quantities of sand were upon the track at 12 o'clock, when the section boss passed Jefferson street, and had been there before, but they had never caused any injury or inconvenience. The size of the sand pile is nowhere disclosed in the record.

On this state of facts, we are of the opinion that the learned judge in the court below erred in taking the questions of negligence and contributory negligence away from the jury. It is the rule in the federal courts that the court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside the verdict in opposition to it. Railroad Co. v Converse, 139 U.S. 469-472, 11 S.Ct. 569; Schofield v. Railroad Co., 114 U.S. 615-618, 5 S.Ct. 1125; Randall v. Railroad Co., 109 U.S. 478-482, 3...