Kansas City Southern Ry. Co. v. Moles
| Decision Date | 09 March 1903 |
| Docket Number | 1,773. |
| Citation | 121 F. 351 |
| Parties | KANSAS CITY SOUTHERN RY. CO. v. MOLES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James B. McDonough (Gardiner Lathrop, Thomas R. Morrow, and James F. Read, on the brief), for plaintiff in error.
James D. Head (Oscar D. Scott, on the brief), for defendant in error.
The complaint alleges, in substance, that on the 12th day of July, 1900, the plaintiff, in company with Henderson and Dollarhide, at the invitation of the defendant railway company and W. S. Morris, entered a car loaded with ice which had been set out on a side track at the town of Dequeen, Ark., for the purpose of unloading the ice into W S. Morris' icehouse, situated a few feet from the side track on which the car stood; that for the purpose of unloading the ice the plaintiff was stationed in the icehouse to receive the ice as Henderson, who was in the ice car, sent it to him over a slide made for the purpose out of timbers fastened together by slats; that while so engaged in unloading the ice the trainmen of one of defendant's trains negligently caused the same to be pulled down the main track to the side track, and then negligently and suddenly without any precaution, and without keeping any lookout whatever, and without any warning being given by bell or whistle or otherwise, kicked, shoved, or pushed a car from the main line up the side track into and against the car which plaintiff and his companions were unloading, with such force and violence that it propelled the car forward to such a distance that it caused the slide running from the icehouse to the car to catch the plaintiff's leg between itself and a sill of the icehouse, thereby causing a fracture of the bone of plaintiff's leg and laceration of the flesh making a serious and severe wound; that the defendant and its agents and trainmen were aware of the presence of the plaintiff and his companions in the icehouse and car; that it was the custom of the defendant company to cause cars of ice to be set out on this siding for the purpose of being unloaded into this icehouse, and defendant knew that it was the custom for the ice to be unloaded there, and the trainmen and the agents of the company knew, or by the exercise of reasonable prudence would have known, of the presence of plaintiff at the time and place, and that the car was kicked up the switch track without any brakeman manning the same or to control its movements. The answer was a general denial and a plea of contributory negligence. The testimony substantially supported the case made
by the complaint, but went much more into detail. There was a trial to a jury, and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
CALDWELL Circuit Judge, after stating the case as above, .
It is assigned for error that the court permitted the plaintiff to prove the statements of the conductor concerning the accident, to the following effect: The witness Dollarhide testified as follows:
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