Kansas City S. Ry. Co. v. Billingslea

• Decision Date: 31 May 1902
• Docket Number: 1,126.
• Citation: 116 F. 335
• Parties: KANSAS CITY S. RY. CO. et a. v. BILLINGSLEA.
• Court: U.S. Court of Appeals — Fifth Circuit

116 F. 335

KANSAS CITY S. RY. CO. et a. v. BILLINGSLEA.

No. 1,126.

United States Court of Appeals, Fifth Circuit.

May 31, 1902

Hal. W Greer, R. A. Greer, and Thos. R. Morrow, for plaintiffs in error.

P. K Ewing and H. F. Ring, for defendant in error.

In Error to the Circuit Court of the United States for the Eastern District of Texas.

This is an action at law by the defendant in error, Robert H Billingslea, herein called plaintiff, to recover damages for personal injuries against the Kansas City Southern Railway Company and Samuel W. Fordyce and Webster Withers, as receivers of the properties of the Kansas City, Pittsburgh &amp Gulf Railway Company, the Texarkana & Ft. Smith Railway Company, and the Kansas City, Shreveport & Gulf Railway Company, herein styled defendants.

The cause of action accrued against Fordyce and Withers, receivers as aforesaid; and the Kansas City Southern Railway Company was the purchaser at foreclosure sale of the receivership properties, and thus, it is not denied, became liable under the orders of sale and confirmation for the cause of action counted of if established against said receivers. Webster Withers died pending the suit, and the action proceeded against Samuel W. Fordyce as surviving receiver. The suit resulted in a verdict for $2000 damages, and in a judgment on remittitur for the sum of $15,000 in favor of the plaintiff; payment to be enforced by execution against the Kansas City Southern Railway Company.

The plaintiff, at the time of the alleged injuries, was in the employment of the said Fordyce and Withers, receivers, serving them as a switchman in the yard of the Texarkana & Ft. Smith Railway Company at Port Arthur, Tex. It is shown by the evidence that, on account of certain work which was being done in and about the yard and at the wharf, the yard had become littered up and obstructed on account of the rocks or stones unloaded from, falling from, and knocked off the trains, constituting plain and visible and more or less dangerous obstructions on or near the tracks. At the time of the plaintiff's injury, the agents of the receivers were, and had been for some days, engaged in clearing the yard, and receiving and hauling away the rocks, and it was a part of plaintiff's duty to switch and locate the cars and place them along the tracks at proper places for that purpose. The placing of the cars at the proper places was a part of the work intended to clean up and put the yards in safe condition. It further appears that the plaintiff knew of the condition of the yard, and about four or five days before the casualty talked of the same, and in regard to remaining on that account in the employment of the receivers, to the yard foreman, a Mr. Murphy, who had charge of the yard, and who was the receivers' authorized agent; and as this conversation seems important, we quote from plaintiff's evidence as follows:

'Q. Had you ever had any conversation with Mr. Murphy in regard to the condition of that track, and anything they were supposed to do with it? A. Mr. Murphy had only been there a week or ten days before the accident. Five or six days before the accident I was sitting on the company walk, a walk extending 150 yards in front of the depot. The engine was working, and had left me there, and the conversation came up between Mr. Murphy and I as to the condition of the yard. I made the remark, 'It will not bother me, as I will not be here long.' He said, 'I came here under instructions to put the yards in good condition, and I will do it.' The next morning after that conversation we put eight cars at his disposal on tract No. 5. Q. You told him you were not going to stay there? A. Yes, sir; I told him that I would not work in the yards in the condition they were. Q. You gave him that as a reason why you thought of moving? A. Yes, sir. * * * Q. What is usual and customary in regard to keeping switch yards in condition? A. In all yards I have been employed in, I have found on the part of the management that it was necessary for the men in charge to keep the yard in perfect working condition, and keep cleaned all obstructions that are dangerous to the employes employed in the yards, such as pieces of rock, stone, and things left lying over the yard. Q. What is the necessity of that? A. To prevent accidents occurring while switchmen are working. Q. What did you say that Murphy said he would do in regard to clearing away those rocks, and when he was going to clear the yards? A. He said he was going to do it. Q. He said he was going to do it? A. Yes, sir. Q. Did that have an effect on your intention to remain or otherwise? A. Yes, sir; I was satisfied with the position I had. The position was not hard, and I got a very nice salary, and I did not propose to give it up, if I thought I was safe. I relied on the promise, and thought he was executing the promise by removing the rocks.'

The following is a map of the yard used by both parties:

(Image Omitted)

The jury returned a verdict in favor of the plaintiff for $20,000, and thereupon judgment was entered. A motion for a new trial was entered and argued by counsel, whereupon the court declared that, if the plaintiff remitted $5,000 of the verdict and judgment, said motion would be denied; otherwise sustained; the court, at the same time, declaring that it was of opinion the verdict was too large merely from overestimation, and not from any improper motive on the part of the jury. Thereupon a remittitur was entered in the sum of $5,000, accepted by the court, and judgment entered for $15,000. Other material facts are stated in the opinion of the court.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

After stating the facts as above, PARDEE, Circuit Judge, .

The first assignment of error charges that 'the verdict of the jury for the full amount sued for, to wit, $20,000, for the loss of plaintiff's left foot about half way between the knee and the foot, manifests that the jury was prejudiced, and was influenced by passion or ignorance, and did not render an impartial verdict under the facts nor charge of the court. ' We find nothing in the record to indicate that the jury was influenced by either passion or ignorance, but, on the contrary, find that, in the opinion of the trial judge, the amount of the verdict was not due to any improper motive on the part of the jury, but, in so far as it was excessive, resulted from overestimation. The contention raised by this assignment of error is entirely beyond our jurisdiction to review unless the record affirmatively shows that the jury was either improperly influenced, or was governed by passion and prejudice, to the material injury of the parties.

The second assignment of error is to the effect that the verdict and judgment of $15,000 was excessive, and needs no consideration.

The fourth assignment of error is to the effect that the verdict of the jury is against the clear weight and preponderance of the testimony. The defendant did not move for a general charge to the jury, but allowed the case to be submitted on the evidence, and the matter is therefore beyond our review.

The fifth assignment of error is to the effect that the verdict is contrary to, and not supported by, the law as given in the charge of the court, nor by the evidence admitted under the ruling of the court, in that if the cars were in motion whether rapidly or slowly, in response to plaintiff's signal, the same did not require the plaintiff to mount said moving cars; and the direct and proximate cause of his injury was his own act in attempting to mount said moving cars.

The sixth assignment of error is that the verdict and judgment are not supported by the admitted facts in that plaintiff mounted a moving train of cars, in a yard which he had testified he knew to be dangerous by reason of the rocks and obstructions, and his own testimony showed he was injured by one of these obstructions. We understand these two assignments of error are based on the proposition that the plaintiff was guilty of contributory negligence, and we think they are not well taken, because contributory negligence is a matter of defense, and in this case that question was submitted to the jury on the evidence, with instructions regarding the same fully as favorable to the defendants as the law will allow.

The seventh assignment of error complains of the overruling of defendants' motion for a new trial, and needs no consideration.

The eighth assignment of error is the overruling of the defendants' general demurrer to the plaintiff's petition, in that the same fails to state a cause of action in this: that it alleges plaintiff, in his capacity of switchman, attempted to mount a moving train of flat cars, and was injured by so doing; thereby and therein alleging contributory negligence per se on his part. As stated above, contributory negligence is an affirmative defense, and we do not think it can be predicated upon the mere fact that a switchman mounted a moving train which was being switched in the yards of the company.

This disposes of all the assignments of error except the third, to the effect that the court erred in laying great stress upon and in repeating the charge that if defendants' agent Murphy assured plaintiff that the yard where the injury occurred was repaired, and the obstructions removed, and if plaintiff relied on such statement and was injured, he could recover. The exception on which this assignment is based was as follows:

'Mr. Greer. I wish to except to that portion of the court's charge to the effect that if Murphy assured and stated to the plaintiff that that portion of the yard had had the obstructions removed therefrom, and he acted thereon, as laying too great a stress upon the proposition, and

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