Miller v. Missouri, K. & T. Ry. Co.

• Decision Date: 03 April 1909
• Docket Number: 2,900.
• Citation: 169 F. 567
• Parties: MILLER v. MISSOURI, K. & T. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 567

MILLER v. MISSOURI, K. & T. RY. CO.

No. 2,900.

United States Court of Appeals, Eighth Circuit.

April 3, 1909

C. C Lawson and Silver & Brown, for plaintiff in error.

George P. B. Jackson, for defendant in error.

Before HOOK, Circuit Judge, and RINER and AMIDON, District Judges.

RINER District Judge.

This action, commenced in the state court, was removed to the Circuit Court of the United States for the Western District of Missouri by the defendant, on the ground that the controversy was one wholly between citizens of different states; the defendant being a citizen of the state of Kansas and the plaintiff a citizen of the state of Missouri. The parties are here arranged as they were in the court below the plaintiff in error being the plaintiff and the defendant in error being the defendant, and for convenience they will be hereafter referred to as plaintiff and defendant respectively. The object of the action is to recover for personal injuries suffered by the plaintiff while engaged as a brakeman in the employ of the defendant. At the conclusion of the testimony, the court instructed the jury to return a verdict in favor of the defendant. A judgment was entered in favor of the defendant upon the verdict, and this writ of error is sued out to reverse that judgment.

The record discloses the following state of facts: That the defendant was a railroad corporation created and organized under the laws of Kansas and operating a line of railroad from St. Louis, Mo., to Harrisonville, Mo., and in other states; that a part of its lines of railroad extended from Sedalia, Mo., to Paola, Kan.; that the plaintiff on September 29, 1905, was a brakeman on one of its freight trains being operated between Sedalia and Paola; that the train on which he was employed arrived at East Lynn, a station in Cass county, Mo., about 4:30 o'clock in the morning; that at the time the train arrived it was still dark; that there was no light in the station, and that he had no light other than that furnished by a lantern carried by him; that, upon the arrival of the train at East Lynn, the conductor directed the plaintiff to uncouple the engine and get a car that was then standing on the side track near the station; that between this car and the switch-head on the side track there was a string of cars which it was necessary to couple onto and push back east, the train being headed west, to a connection with the car they desired to take out so that it might be coupled on for the purpose of placing it in the train; that there was a road crossing near the station and this car was separated from the other cars at the crossing, the car desired being on the east side of the crossing, and the other cars in the string on the west side; that, after coupling the engine to the string of cars, the plaintiff ascended to the top of the first car to release the brakes upon this string of cars so that they could be moved; that he passed from car to car, releasing the brakes upon each until he came to the last car but one, and, after releasing the brake, he proceeded to the ladder on the southeast corner of the car, as it then stood, for the purpose of descending in order to make the coupling with the car which they desired to put into the train; that in doing so he placed his feet upon one of the iron bars bolted to the car to be used as a step for the ladder, and got hold of what is designated in the testimony as the grab iron or bar which is bolted onto the roof of the car, and is used in conjunction with the bars on the side as a ladder; that as he was in the act of doing this the grab iron pulled loose at one end, causing the plaintiff to fall backward and to the ground, a distance of about 14 feet, striking on his hip and back, thereby receiving the injuries here complained of.

The testimony tends to show that this car from which the plaintiff fell was known as a 'bad order' car, although there is nothing in the record disclosing that it was so marked or in what respect it was damaged. The evidence does show, however, that whatever the damage to the car was it did not affect the appearance of the car on top. The plaintiff testified that he did not know it was a bad order car, that at the time he attempted to descend he noticed the handhold by the light of his lantern, and that it was apparently all right. The testimony shows that the plaintiff was a brakeman on a through freight, and had been in the service of the company but a short time. He testified that, while he had heard some of the trainmen say there were some bad order cars scattered along at the different sidings, he did not know there were any cars of that character in the string he was then handling, and could not know from his position on top of the car. The record shows that the track upon which this car was standing was not a track set apart for 'bad order' cars, but was a side track at a small station for general use; the shops being at Sedalia where 'bad order' cars were usually stored for the purpose of being repaired.

John Beems, a car repairer in the shops at Sedalia, was sent out by the foreman of the shops the day following the plaintiff's injury to examine the car from which the plaintiff fell. He testified that one end of the handhold had been fastened to the top of the car with a lag screw, that the lag screw had pulled out, and that the timber on top of the car at the place where the lag screw had been fastened was decayed and rotten. He testified on cross-examination that he knew it had been fastened with a lag screw, because the screw, which was about four inches in length, was still in the handhold. He further testified that the corner of the car was not broken down or otherwise damaged, but that this screw had given way simply because of the rotten condition of the wood; that, if the car was damaged otherwise, it was not discernible from the top.

J. C. Ragsdale, a witness for the defendant, testified that he was a freight brakeman on the opposite crew to the plaintiff; that a few nights after the accident to the plaintiff his train stopped at East Lynn; that while doing some work there the other brakeman of his crew called his attention to the fact that this handhold was loose at one end; that he was at that time on the top of the car, and testified that the car was not 'cornered' at the time, meaning thereby, as the testimony shows, that it was not broken down.

Thickitt a witness for the defendant, testified that he was one of its claim agents; that he saw the car from...