Marshall v. Hines

• Decision Date: 18 January 1921
• Docket Number: 5541.
• Parties: MARSHALL v. HINES, Director General of Railroads.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F. 165

MARSHALL v. HINES, Director General of Railroads.

No. 5541.

United States Court of Appeals, Eighth Circuit.

January 18, 1921

J. S McCarty, of Lincoln, Neb. (G. W. Berge, of Lincoln, Neb., and J. H. Agee, of Superior, Neb., on the brief), for plaintiff in error.

Jesse L. Root, of Omaha, Neb. (Byron Clark, of Omaha, Neb., M. V Beghtol, of Lincoln, Neb., and J. W. Weingarten, of Omaha Neb., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

Elizabeth Marshall, administratrix of George L. Marshall, brought an action against the Director General of Railroads for $25,000 damages for his alleged negligence in the operation of an engine and three cars on a switch track at Superior, Neb which, she alleged, caused the injury and death of Mr. Marshall. The Director General denied the negligence averred and alleged that Mr. Marshall's injury and death were caused by his own negligence. The issues were tried by a jury. At the close of the evidence the court directed a verdict for the Director General, hereafter called the defendant, and a verdict and judgment accordingly were entered. The administratrix, hereafter called the plaintiff, sued out this writ and her counsel made several specifications of error; but they are all included in the single charge that the trial court erroneously instructed the jury to return a verdict for the defendant. Complaint of this ruling presents the question whether or not the evidence was such that the court below could, in the exercise of its judicial discretion, have sustained a verdict or judgment for the plaintiff if it had been rendered, and has induced an exhaustive examination of the evidence, which has disclosed these facts:

Mr. Marshall was run over and mortally injured by an engine operated by the defendant on a switch track of the railroad company at Superior, Neb., about 1 o'clock in the afternoon on a bright sunshiny day in August, 1918. This switch track was a stub track serving a mill, so that it was necessary in operating it to back the engine in upon or out over it, and the engine was backing west, tender foremost, with three cars following it, when the accident happened. About 400 feet west of the mill, which was situated near the end of the stub track and on the south side of that track which extended west from the mill toward its junction with the main track, there stood a large brick building, about 195 feet long, with a cement platform about 4 feet high on the north side of it, which was owned by the Henningsen Produce Company. The switch track alongside this building lay on the land of the Produce Company, parallel with and about 46 inches north of the cement platform, but east of the northeast corner of this building this track curved to the south, so that further east it lay 4 feet south of the line on which it lay opposite the building. North of this track, and approximately parallel with it, was the public road 30 feet wide. The land between this road and the Produce Company's building was not inclosed, and customers of that company with their teams and others passed over it on their way to and from that building when engines or cars were not using this switch track but it was not a public highway.

Mr. Marshall was about 60 years of age, a resident of Superior, a man in full possession of all his faculties, long familiar with the situation of the track, the road, the cement platform, the switch track, and their uses, a carpenter by trade, who had previously worked in and about the Produce Company's building. Mr. Johnson, a witness called by the plaintiff, was the secretary-treasurer and manager of the Produce Company, which was engaged in dealing in butter and eggs, storing produce, making butter, and handling poultry. On the day of the accident he engaged Mr. Marshall to do some carpenter work at the Produce Company's building. A few minutes before 1 o'clock in the afternoon of that day he went to Mr. Marshall's residence and took him in his automobile to a point on the public road north of the Produce Company's building opposite the middle of and about 30 feet from it, where they alighted and walked south to the cement platform. They came to the place where they stepped out of the automobile upon the road from the east, and on their way they passed at a distance of about 5 feet the engine and the three cars, which were then standing on the switch track at the mill 400 to 500 feet east of the east end of the Produce Company's building. Before they reached the cement platform the engine commenced to back west towards them upon the switch track and to draw the three cars after it, and when they reached the platform, Johnson, who had seen the engine and cars coming, told Mr. Marshall to look out for the engine. There were steps leading from the ground up to the surface of the platform at the extreme west end of it, and others of like character at a point about 45 feet east of the place where Mr. Marshall and Mr. Johnson reached the platform.

Johnson testified that he thought Marshall heard him at that time tell him to look out for the engine, and that he had heard what he said in an ordinary tone of voice in the conversation they were having before they arrived at the platform. When Mr. Johnson gave Mr. Marshall this first warning, the backing engine was about 350 feet east of Mr. Marshall. As soon as Johnson had given Mr. Marshall this warning, he jumped up onto the platform as he was accustomed to do; but Marshall who was carrying some of his tools, failed to follow him, and when Johnson had landed on the platform and straightened himself up he saw Mr. Marshall about 15 or 20 feet further east toward the coming engine, with his feet on the ground and his hands on the platform. Thereupon Johnson shouted at the top of his voice to get out of the road of that engine, which was then about 100 or 175 feet east of him. Marshall looked up at Johnson, but did nothing more. Then Johnson immediately shouted his warning again. Marshall glanced over his shoulder, threw up his hands, and started north across the track; but he stumbled, and the tender caught him before he had crossed the track. While there were a few trunks of trees and a few branches between Johnson and Marshall and the engine at times between the time when they left the automobile and the time the tender caught Mr. Marshall, the engine and train were readily visible to each of them all this time, and as they went from the automobile to the platform, and as Marshall went east between the first and second warning, his face must have been toward them. The engine moved west...