Kansas City Southern Ry Co v. Ellzey, No. 63

CourtUnited States Supreme Court
Writing for the CourtSTONE
PartiesKANSAS CITY SOUTHERN RY. CO. v. ELLZEY
Decision Date21 November 1927
Docket NumberNo. 63

275 U.S. 236
48 S.Ct. 80
72 L.Ed. 259
KANSAS CITY SOUTHERN RY. CO.

v.

ELLZEY.

No. 63.
Argued Oct. 24, 25, 1927.
Decided Nov. 21, 1927.

Messrs. F. H. Moore, of Kansas City, Mo., and C. H. Lewis and J. D. Wilkinson, both of Shreveport, La., for petitioner.

[Argument of Counsel from pages 236-238 intentionally omitted]

Page 238

Mr. S. P. Jones, of Marshall, Tex., for respondent.

[Argument of Counsel from page 238 intentionally omitted]

Page 239

Mr. Justice STONE delivered the opinion of the Court.

Respondent, a United States deputy marshal, was assigned to guard Merchant, a telegraph lineman employed by petitioner, from violence by strikers. He went with Merchant to repair a telegraph line, and while returning with him on a motorcar over petitioner's railroad the car was derailed and respondent injured. Respondent brought the present suit in the District Court for Western Louisiana to recover his injuries. The trial by jury resulted in a verdict and judgment for the defendant, the petitioner here. The Circuit Court of Appeals for the Fifth Circuit (Ellzey v. Kansas City Southern R. Co., 12 F.(2d) 4) reversed the judgment holding that an instruction to the jury by the trial judge was erroneous.

There was evidence from which the jury could have found that the accident and injury were caused by the negligent operation of the motorcar by Merchant at a dangerously high rate of speed. There was also evidence from which it might have found that respondent contributed to his own injury either by urging Merchant to drive at excessive speed or by failing to object to Merchant's

Page 240

obvious negligence. That part of the charge designated by the court below as erroneous is as follows:

'If you should find that in this case the plaintiff urged, directed, or counseled the driver of the car to run it at a reckless and high rate of speed, and that as a result of such reckless running the car was injured, then that would be contributory negligence which would bar his recovery, or if he saw that the car was being negligently run, in such a manner as with the knowledge that he had before him at the time a man placed in his position must reasonably have known that to continue in the situation he was in was dangerous without protesting or desisting and removing himself from the perilous situation at the earliest possible moment, then that would be an act of omission which would contribute to the injury, and would in law constitute contributory negligence.'

The Circuit Court of Appeals, in holding this instruction improper, pointed out portions of the evidence indicating that respondent's conversations with Merchant, relied on to show that he urged or advised Merchant to drive the motorcar at a dangerous rate of speed, took place at Carson, and later at De Ridder, on petitioner's line, and that the accident occurred after leaving De Ridder, and while proceeding north from that point to Leesville. It pointed out, also,...

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42 practice notes
  • Mooney v. Terminal Railroad Assn. of St. Louis, No. 39202.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1945
    ...Fed. (2d) 604; Robbins v. Pa. R. Co., 245 Fed. 435; Linde Air Products Co. v. Cameron, 82 Fed. (2d) 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St L.-S.F.R. Co. v. Schumacher, 152 U.S. 77, ......
  • Moran v. Railway Co., No. 28603.
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1932
    ...no case and her case is not saved by the Humanitarian or Last Chance Rule under the Federal doctrine. Kansas City So. Ry. Co. v. Ellzey, 275 U.S. 236, 48 Sup. Ct. Rep. 80. (c) No negligence under the Missouri doctrine. Gabal v. Railway Co., 251 Mo. 257; Rashall v. Railway Co., 249 Mo. 509; ......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...Fed. (2d) 604; Robbins v. Pa. R. Co., 245 Fed. 435; Linde Air Products Co. v. Cameron, 82 Fed. (2d) 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77,......
  • Graham v. Thompson, No. 39898.
    • United States
    • United States State Supreme Court of Missouri
    • May 27, 1948
    ...8 F. (2d) 604; Robbins v. Pa. R. Co., 245 F. 435; Linde Air Products Co. v. Cameron, 82 F. (2d) 22; Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77......
  • Request a trial to view additional results
42 cases
  • Mooney v. Terminal Railroad Assn. of St. Louis, No. 39202.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1945
    ...Fed. (2d) 604; Robbins v. Pa. R. Co., 245 Fed. 435; Linde Air Products Co. v. Cameron, 82 Fed. (2d) 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St L.-S.F.R. Co. v. Schumacher, 152 U.S. 77, ......
  • Moran v. Railway Co., No. 28603.
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1932
    ...no case and her case is not saved by the Humanitarian or Last Chance Rule under the Federal doctrine. Kansas City So. Ry. Co. v. Ellzey, 275 U.S. 236, 48 Sup. Ct. Rep. 80. (c) No negligence under the Missouri doctrine. Gabal v. Railway Co., 251 Mo. 257; Rashall v. Railway Co., 249 Mo. 509; ......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...Fed. (2d) 604; Robbins v. Pa. R. Co., 245 Fed. 435; Linde Air Products Co. v. Cameron, 82 Fed. (2d) 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77,......
  • Graham v. Thompson, No. 39898.
    • United States
    • United States State Supreme Court of Missouri
    • May 27, 1948
    ...8 F. (2d) 604; Robbins v. Pa. R. Co., 245 F. 435; Linde Air Products Co. v. Cameron, 82 F. (2d) 22; Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L. Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77......
  • Request a trial to view additional results

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