Midland Valley R. Co. v. Bell

• Decision Date: 06 April 1917
• Docket Number: 4752.
• Citation: 242 F. 803
• Parties: MIDLAND VALLEY R. CO. v. BELL.
• Court: U.S. Court of Appeals — Eighth Circuit

242 F. 803

MIDLAND VALLEY R. CO. v. BELL.

No. 4752.

United States Court of Appeals, Eighth Circuit.

April 6, 1917

Rehearing Denied June 22, 1917.

O. E Swan, of Muskogee, Okl. (Farrar L. McCain, of Tulsa, Okl., on the brief), for plaintiff in error.

C. B Randell, of Sherman, Tex. (Randell & Randell, of Sherman Tex., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and RINER and MUNGER, District Judges.

RINER District Judge.

This action was brought, under the federal Employers' Liability Act, by Armor Bell, as administratrix of the estate of John Bell, deceased, defendant in error, against the Midland Valley Railroad Company, plaintiff in error, to recover damages for the death of said John Bell, which she alleges was caused by the negligence of the railroad company. For convenience the defendant in error will hereafter be referred to as the 'plaintiff,' and the plaintiff in error as the 'defendant.' The case was commenced in the state court and removed by the defendant to the United States District Court for the Eastern District of Oklahoma.

The acts of negligence on the part of the defendant, complained of, are set out in the amended petition as follows:

'Fourth. That the wreck of said train and the said resulting injuries to and death of said John Bell, deceased, came about in the following manner, to wit: That on said date and at said place while deceased was riding in the cab of the engine pulling said train, and while carefully and properly discharging his said duties as engineer, a trestle, or bridge, in defendant's said track, over which said engine and train was then and there running, broke, gave way and fell beneath said engine and train, thereby overturning said engine and wrecking it and said train, and causing the injuries to and death of said John Bell, as aforesaid.

'Fifth. That the said injuries and death of the said John Bell were caused by no fault on his part, but by the gross negligence and want of ordinary care of the defendant, its officers, agents, servants and employes.

'Plaintiff alleges that the said engine upon which deceased was riding and all the parts thereof, were old, worn, unbalanced, and insufficiently fastened, out of gauge and out of plumb; and that the track, bridge, trestle, abutments, roadbed, ties, supports, rails, spikes, bolts, braces, timbers, piling, and all the parts, appliances and fastenings of said bridge, trestle and track at the time and place plaintiff was injured, as aforesaid were insufficiently supported, old, worn, warped, bent, broken, cracked, rotten, weak, out of line, and each and all of said conditions directly and proximately caused and contributed to deceased's injuries, as aforesaid.

'Plaintiff charges that the defendant, its officers, agents, servants, and employes in causing and permitting the conditions aforesaid, and in using the track, bridge, trestle, and engine, as aforesaid, was guilty of gross negligence and want of ordinary care, which directly and proximately caused and contributed to deceased's said injuries, and deceased would not have been injured but for same; that the defendant well knew of each and all of said conditions hereinbefore stated, or by the exercise of ordinary care would have known of same, but the same were unknown to plaintiff.'

The answer contained a general denial, and also charged that the deceased was guilty of contributory negligence. No proof was offered, however, in support of the charge of contributory negligence, and, as counsel say in their brief, for the purposes here the answer may be treated as a general denial. There was a trial, verdict, and judgment for the plaintiff in the sum of $12,240.

The record shows that the plaintiff was the duly appointed administratrix of the estate of John Bell, deceased; that she was a resident and citizen of the Eastern district of the state of Oklahoma; and that the defendant was a corporation organized and existing under the laws of the state of Arkansas and a citizen and resident of that state.

The petition charges that on the 12th day of September, 1913, the defendant owned and operated a line of railroad in the state of Arkansas, extending into and through the state of Oklahoma; and it is admitted in the brief of counsel for the defendant that both the deceased and the defendant were at that time engaged in interstate commerce.

The following facts were established by the evidence:

That at the time mentioned in the pleadings, on the line, and forming a part of, defendant's railroad near the town of Kanima, Okl., there was a wooden bridge known as a pile and frame bent trestle, about 225 feet in length, across a ravine, or 'branch,' as some of the witnesses called it; that the height of the bridge from the bottom of the ravine to the base of the rail was 35 feet. The bridge consisted of 16 bents. Bents 1 and 2 and 14, 15, and 16 are what the witnesses call 'pile bents'; that is, the bridge rested upon oak piling driven into the ground. All of the other bents were framed bents. These framed bents rested upon mud sills and mud blocks embedded in the ground. The timber used in the construction of these framed bents was No. 2 Arkansas pine and 12x12 inches square, except the stringers, which were 8x16 inches. The deck of the trestle was 3-ply cord under each rail, consisting of three 8x16 inch stringers and spread sufficiently far apart to permit of 2x16 inch packing boards 5 feet in length to be placed between the line of stringers. These and the stringers were bolted together over each bent with 3/4 inch bolts. Upon this deck the ties and rails were placed, the ties being 8x8 inches, spaced 12 ties to the panel, the panels being 14 feet 9 inches each between the bents. Extending from one bent to the other crosspieces or sway braces were fastened to the bents to hold the main members of the bridge in position and prevent them from vibrating.

In March, 1912, more than a year before the accident complained of, the bridge was repaired by taking out some of the timbers which had become decayed and sap rotted, and replacing them with new timbers; about 15 per cent. of the timbers being thus taken out and replaced.

On the 12th of September, 1913, John Bell, husband of the plaintiff was a locomotive engineer in the employ of the defendant and on that date was in charge of one of its engines hauling a freight train consisting of flat cars, loaded oil cars, and some empty coal cars. The train left Muskogee about 9 o'clock in the evening of the 11th, and had proceeded eastward toward Ft. Smith, about 55 miles, arriving at this bridge near 1:25 on the morning of the 12th. When the train was upon the bridge in question and the engine about 25 or 30 feet from the east end thereof, that part of the bridge under and for some distance back of the engine collapsed and with the engine and a few cars fell to the ground below, and Bell, the engineer, was caught under the engine and instantly killed. After the bridge fell, it took fire, and the entire structure was destroyed so that it was impossible to determine, from an examination, the condition of the timbers at the time of the accident. In addition to the foregoing facts, which were not disputed, the plaintiff offered testimony...