Kansas City Southern Ry Co v. Ellzey

Decision Date21 November 1927
Docket NumberNo. 63,63
Citation275 U.S. 236,72 L.Ed. 259,48 S.Ct. 80
CourtU.S. Supreme Court

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

[Argument of Counsel from page 238 intentionally omitted] 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 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, that under the quoted instruction the respondent could not have recovered if the jury found that he had voluntarily remained on the car after he saw it was being negligently run. The court considered this erroneous, saying:

'Though the plaintiff was negligent in the respect stated, if, as evidence adduced indicated, the defendant's employee was aware of such negligence in time to have avoided the injury by the use of reasonable care, and he failed to use such care, that failure might be found to be the sole proximate cause of the injury, and plaintiff's negligence be deemed a remote cause. Chunn v. City &amp Suburban Ry., 207 U. S. 302 (28 S. Ct. 63, 52 L. Ed. 219). * * * The plaintiff's right to recover was not barred, if his negligence was only a remote cause of his injury, and Merchant's negligence was the sole proximate cause of it.'

This language suggests that the Circuit Court of Appeals thought this case to be governed by the doctrine of the last clear chance. That doctrine, rightly applied in the Chunn Case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of ...

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