Marbury v. Illinois Cent. R. Co.

• Decision Date: 05 January 1910
• Docket Number: 1,965,1,966.
• Citation: 176 F. 9
• Parties: MARBURY et ux. v. ILLINOIS CENT. R. CO. et al. ILLINOIS CENT. R. CO. et al. v. MARBURY et ux.
• Court: U.S. Court of Appeals — Sixth Circuit

176 F. 9

MARBURY et ux. v. ILLINOIS CENT. R. CO. et al.

ILLINOIS CENT. R. CO. et al. v. MARBURY et ux.

Nos. 1,965, 1,966.

United States Court of Appeals, Sixth Circuit.

January 5, 1910

This suit was brought in the circuit court of Shelby county Tenn., by William Messick and Mrs. Mary Messick, his wife against the Illinois Central Railroad and the Pullman Company, to recover damages for alleged negligence. On petition of defendants the case was removed to the court below.

It was stated in the declaration in substance that on January 7 1905, Mrs. Messick was a passenger in a sleeping car of the Pullman Company on one of the trains of the railroad company from Memphis to New Orleans; that the weather was extremely cold, and the sleeping car was allowed to be and remain unheated for several hours and until the train reached Grenada, Miss.; that Mrs. Messick was in a delicate condition, recovering from a severe illness of several months, and this information was given to the defendants at the time plaintiff boarded the car; that Mrs. Messick suffered a relapse, which permanently affected her health and wrecked her nervous system. To this declaration the defendants each filed a plea of not guilty.

William Messick died, and the suit was revived in the name of his widow. Subsequently Mrs. Messick married C. C. Marbury, and thereupon an order was entered by the court that the case be prosecuted in the name of C. C. Marbury and Mary Marbury. The case brought here was the result of a second trial; a verdict being rendered in favor of plaintiffs against both defendants for $750. Plaintiffs for themselves and the defendants have each prosecuted error to this court.

John E. Bell, for plaintiffs.

Albert H. Biggs, for defendant Illinois Cent. R. Co.

Thos. H. Jackson, for defendant Pullman Co.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

So far as Mrs. Marbury is concerned, the complaint is that the court in its charge to the jury erred in limiting recovery to such damages as a person in average health would suffer, without resulting sickness, inconvenience, or injury, from riding for several hours on a cold day in a sleeping car which was not supplied with heat, and in withdrawing from the jury all evidence relating to plaintiff's real condition and to damages resulting from her subsequent relapse and sickness.

The reason for so limiting recovery is not in terms stated in the charge of the court. The reason urged at the time by counsel for the railroad and Pullman companies in support of motions to direct a verdict was that the proofs did not connect defendants' breach of duty with plaintiff's subsequent relapse. It is still insisted that the proof fails in this regard, because it does not show certainly that the cold in the car caused the relapse; and, on the contrary, it is said that other causes for which defendants were not liable may have brought on the relapse. From this it is argued that the cause of plaintiff's relapse is merely conjectural, and consequently that the jury was not entitled to speculate as to the real cause.

In attempting to show that the condition of the sleeping car was the cause of plaintiff's relapse and sickness, testimony of physicians was offered and received. But the court subsequently withdrew this testimony from the consideration of the jury. There was no claim that the cause of relapse was not a proper subject for expert testimony. Nor was it suggested that the physicians were not competent as experts. It is likewise to be noticed that no denial is made in argument of the impaired physical condition of plaintiff when she entered the car, or of the fact that she suffered a relapse and severe illness some days subsequently to her exposure to cold in the car. Moreover (apart from a claim of the Pullman Company that it was not shown that it owned the sleeping car), the position taken by the companies amounts to an admission that they were guilty of neglect in failing to heat the car. The present inquiry is therefore reducible to this: Whether the whole proof as originally received was sufficient prima facie to connect defendants' breach of duty with plaintiff's subsequent relapse and sickness.

We shall speak of Mrs. Marbury as Mrs. Messick, for she is called by the latter name in the record. It appears that Mrs. Messick suffered a miscarriage in September, 1904, and that this was attended by pelvic inflammation, including inflammation of the ovaries and Fallopian tubes, as well as of the peritoneum covering those organs; the technical name of the disease being salpengitis. She suffered with the disease through October and November; her life being despaired of for a few days. She apparently improved in December, and, as she says, 'commenced getting better and better and better' until Christmas. She then moved about the rooms in which she and her husband (who was also ill) were confined until January 7, 1905. On that day, under the advice of her physician, she and her husband, with their children and a nurse, went from Memphis to New Orleans over the Illinois Central Railroad, to remain for a time at the home in New Orleans of Mrs. Messick's mother. She was not off of the floor of the rooms before mentioned between the commencement of her illness and the time of starting for New Orleans. She walked down the stairs of her home and then for a distance of some 30 or 40 feet to a carriage, and upon arrival at the railroad station she was taken in a wheeled chair to a restaurant in the station, where she waited with friends until the train arrived. She was taken thence in the chair to the steps of the sleeping car. She then walked into the car and to the drawing room.

It will conduce to clearness later briefly to refer to Mrs. Messick's exposure to cold.

The weather was cold at Memphis, the thermometer ranging from 23 degrees above zero in the morning to 31 at 12 o'clock noon, 32 at 3 o'clock, and 31 at 4 and 8 o'clock; the ground being covered with ice and snow. The sleeping car was not heated when Mrs. Messick and her family boarded it, and it was suffered to remain in that condition for about four hours. At Grenada, Miss., after some trouble, if not repair, the heat was turned on. Requests were repeatedly made of the conductor and porter to have the heat turned on, but though frequently promised it was not done until the time mentioned. Meanwhile Mrs. Messick reclined on the lounge. The car was comfortable on the trip from Grenada to New Orleans. Upon arrival in that city, Mrs. Messick walked from the car to a carriage, and was taken thence to the home of her mother, where she walked from the carriage into the residence. She there suffered a relapse, and a long and continued illness.

The difficulty of the present question begins here, for there is no dispute of moment in the testimony thus far. Was the relapse traceable proximately to the cold in the car? If so, liability does not seem to be seriously controverted. Or, on the other hand, was the relapse traceable to exposure in going to the car, or to the excitement and natural fatigue of the trip? Or were all these causes so blended as to prevent identifying any cause for which defendants were liable? These and kindred questions are found throughout the testimony of the physicians, and they resulted in introducing into the case much confusion.

This confusion may, we think, be fairly cleared away by giving attention to what we conceive to be the preponderance of testimony concerning Mrs. Messick's trip from her home to the sleeping car at Memphis, and from the sleeping car at New Orleans to the home of her mother in that city. The short distance she walked between the room of her home and the carriage, and the comparatively short time she was in the carriage in going to the station, and then in the wheeled chair to the restaurant of the depot, do not, from the testimony, appear in point of time or of exertion to have caused excitement, fatigue, or exposure of consequence. The restaurant was on the level of the street approach and the railroad tracks, while the waiting room was on the floor above. The restaurant was comfortably warm, and Mrs. Messick was cheerful while waiting there an hour for the train. She was then removed in the wheeled chair to the steps of the sleeping car, and the exertion required to walk into the car and to the drawing room could not have been as great as that involved in walking from her room to the carriage. It is true the attention of one of the witnesses was called to the fact that in her former testimony she had said that Mrs. Messick appeared exhausted when she reached the drawing room; but the explanation of the witness seems to remove that impression. The same general result may be stated respecting Mrs. Messick's leaving the car and going to her mother's home in New Orleans, although the distance between the station and her mother's home in that city was about two miles. We do not discover any claim that the weather was cold in New Orleans; nor do we recall any evidence tending to show that there was any more occasion for fatigue in riding from the sleeping car to the home of her mother in that city than there was in riding from her own home to the sleeping car in Memphis. Dr. Maury, one of her attending physicians in Memphis, testified:

'Q. Who, if any one, advised that the trip would be safe? A. I did. Q. Doctor, if she had taken that trip well cared for until she was placed into a sleeping car, in the drawing room of the car, and the car had been properly heated and provided, would the trip have been a dangerous one? A. I don't think so, at the time.'

It is therefore hard to see how the testimony supports the hypotheses...