Kansas & A. V. Ry. Co. v. White, 567.

• Decision Date: 03 April 1895
• Docket Number: 567.
• Citation: 67 F. 481
• Parties: KANSAS & A.V. RY. CO. v. WHITE.
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 481

KANSAS & A.V. RY. CO. v. WHITE.

No. 567.

United States Court of Appeals, Eighth Circuit.

April 3, 1895

Geo. E Dodge, B. S. Johnson, and C. B. Moore, for plaintiff in error.

William T. Hutchings, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

This suit was commenced by Alonia White, as administratrix of the estate of Warner B. White, deceased, the defendant in error against the Kansas & Arkansas Valley Railway Company, in the United States court in the Indian Territory, to recover damages for the killing of Warner B. White, the plaintiff's husband. On the 4th day of May, 1892, Warner B. White, the deceased, was traveling on a freight train of the defendant, in charge of cattle. The accident which resulted in his death occurred about 2 o'clock at night at Wagner, in the Indian Territory, and was brought about by a mistake in making a drop or flying switch. The engineer intended that the engine should go on the switch, and the stock train, and the caboose on which White was riding, on the main track; but by some mistake the engine went on the main track, and the stock train on the switch, where it came in collision with some loaded coal cars standing on the switch track, with so much force and violence that the caboose was thrown over, and more or less broken up. The end which came in contact with the coal cars was 'swished around, and the track torn up'; and the other end was jammed into the cattle car in front of it, and White, who was standing on the platform of that end of the caboose, was thrown into and against the cattle car, and killed. The plaintiff in error contends that the evidence does not show that the company was guilty of negligence, and does show that the deceased was guilty of contributory negligence. These were questions of fact, which were properly submitted to the jury by the court in a charge to which no just exception can be taken. On both these issues there was evidence from which the jury might infer that the company was negligent, and that the deceased was not negligent.

The instructions asked by the defendant, and refused, were fully covered by the court's charge in chief, and the court properly refused to repeat them in the language of counsel. The court gave the following instructions to the jury 'If you find that the deceased was, at the time of the accident, riding upon the platform of the caboose,-- and that is not denied,-- and if you further find that the deceased would not have been injured if he had been inside the caboose, and not on the platform, you will find for the defendant, notwithstanding the defendant may have been negligent in the operation of its trains, because the platform of the caboose was a place where the deceased had no right to be. (But if you believe from the evidence that, although the deceased was upon the platform at the time of the accident, that his being there did not contribute in any degree to his injury,-- that is, if you believe that he would have been fatally injured if he had been inside the caboose,--then the plaintiff is entitled to recover, provided you find that defendant was guilty of negligence as before charged.) ' The defendant duly excepted to so much of the paragraph of this...