McCann v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 02 January 1901
• Docket Number: 716.
• Citation: 105 F. 480
• Parties: McCANN v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

105 F. 480

McCANN v. CHICAGO, M. & ST. P. RY. CO.

No. 716.

United States Court of Appeals, Seventh Circuit.

January 2, 1901

This action is for a personal injury sustained by the plaintiff in error (plaintiff below), caused by being struck by a train of cars while standing at a crossing on Leavitt street in the city of Chicago, waiting to board a train on the Pittsburgh Cincinnati, Chicago & St. Louis Railroad on December 13 1897, by means of which he was thrown to the ground, and his leg crushed by being passed over by the engine of the said train. Leavitt street runs north and south, and at the place where the accident happened it is crossed at right angles with several railroad tracks running east and west. The two most northerly of these tracks are the main tracks of the Galena Division of the Chicago & Northwestern Railway Company. Immediately south of these, and adjoining, are two other main tracks of the first above named road known as the 'Pan Handle,' but used also by the defendant company. The north track is used for out or west bound trains, and the south track for east-bound trains. Just north of these tracks lie two main tracks of the Chicago & Northwestern Railway Company, and just south extend the switch tracks of the Pan Handle road. These joint tracks are 7 feet apart, so that when two trains are passing upon adjoining tracks the space between the passenger coaches is only about 18 or 20 inches,-- too narrow for safety for a person standing between the tracks; and it is evident it was never intended that a person should so stand. These tracks, besides being fenced had crossing gates maintained on either side, and a flagman stationed there to give warning; so that for a grade crossing it was made as safe as could well be, and as safe as other like grade crossings in the city. For two years prior to this accident the Pan Handel Company had run a work train west over the north joint track above referred to, in the early evening, in order to carry its own employes to and from their places of work along the line of its road. This train did not carry passengers generally, but only employes of the road starting from their round house at Curtis street, and running to the Englewood yards at Sixty-Third street. It carried no passengers, and was not put in for that purpose. It ran on a schedule as No. 42 of the time-card issued by the superintendent of terminals controlling the operation of the joint tracks between the Union Depot and Western avenue in the city. It was not scheduled to stop at Leavitt street, but had been accustomed to do so every evening to accommodate the workmen of that road residing near the crossing. There was no depot there, nor any platform, but simply an ordinary street crossing, planked as such like those over the other highways in the city. The joint time-table shows that no train was scheduled to stop at this crossing, and none did so in fact except this work train, which had been accustomed to stop to pick up the employes of that road who wished to go west to their work. About the same time in the evening the defendant's Pioneer Limited train of empty sleepers, coaches, and baggage cars was regularly backed east upon the adjoining track to the Union Depot to go out on its run to St. Paul. It was scheduled upon the joint time-card as coach train No. 1, and its time was 15 minutes from Western avenue to the Union Depot, a distance of three miles. These two trains-- one on the Pan Handle, the other on the defendant's road-- usually met, as they did on this evening, at or near Leavitt street. The plaintiff was a flagman at Fifty-Ninth street for the Pan Handle Company. He lived northwest from the place of the accident, and for 15 months had been accustomed to take this work train at Leavitt street to go to and from his work. On the evening of the accident he reached this crossing about 10 minutes before train time. His relation of the accident is this: 'On this night I turned south on Leavitt street. Was waiting at the railroad tracks with the rest of the men to take the work train out to Fifty-Ninth street. Waited at crossing about 10 minutes. The train was about on time, and due there at 5:40. I was waiting on the north side of the joint main tracks. When I saw it, I think the work train was about 80 feet east of the east sidewalk on Leavitt street but slowed up when she saw I was between the two tracts,-- just as she got about to the east sidewalk. In the meantime I went across, so as to get on the south side of the car as she pulled over the crossing, to save the rush, because she only stopped a minute there to let us on, and I thought I would have a better chance to get on, being an old man, about 59 years, at the time of the accident. After I stepped over there, I waited, and saw both trains were approaching pretty close on to me. After I crossed over to the south, I stopped between the two tracks as near the middle of the cross as could be. I saw the St. Paul train backing up when she was about 40 feet from me. Seeing the other train coming up, I tried to gauge myself as near as I could in the center of the two tracks, so as not to get hurt. I saw the St. Paul train was coming pretty fast. The Pan Handle engine was about the same distance east from me. As the first Milwaukee coach passed me, I turned around to see if I could catch hold of the hand rail of that car. I found she was going too fast for me, and I could not catch it. I wanted to catch hold of the rail of the St. Paul coach in order to get to the rear end of the work train to avoid getting hurt by either one of them. I saw she was going too fast, and I could not do it. Then I turned around, and, just as I turned, it struck me in the shoulder. I faced right north, fell over against the Pan Handel engine, and struck my head against it. The second coach of the St. Paul struck me on the left shoulder, and knocked me over against the Pan Handle engine. I knew just what was up at the time. Of course, I was knocked senseless, but regained consciousness when I found the driving wheel was on my foot. They took me out and to the County Hospital, where they cut off my leg about eight inches below the knee. I used to go there every night and take that train for about fifteen months. There were about twelve or thirteen workmen there that night. There was only one car in the work train. The speed of the St. Paul train was about twenty miles an hour. To the best of my judgment at the time, it was impossible for me to get across the track the St. Paul train was on after I saw the train. I was in the middle of the two main tracks. ' On cross-examination he says: 'I did not pay any attention to know whether the workmen standing there were yelling to me or to some one else. I had come to this crossing and had taken this work train there every night for fifteen months before the accident. I got there that night about ten minutes before the train came. I stood on the north side of the Pan Handel tracks. There were some other workmen who were standing on the same side with me, to take the train. I noticed the Pan Handle work train coming from the east, and thought I would go over to the south side of the car as she pulled up to the crossing, so as to have more room to get on the train when it did stop there. I went over to the south side, between the two joint tracks, for that purpose. I did not remain on the side where the rest of the workmen go on. I went over to the south side alone. When I went over to the south side, the Pan Handle engine was just east of the east sidewalk on Leavitt street and the St. Paul train was close to the crossing on the west side of it. They were about equal distances apart when I crossed over to the south side. I think, if anything, the St. Paul was nearer. Before I crossed over, I did not look to the east nor to the west. After I had got over, and between the tracks,...