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

Decision Date09 April 1900
Docket Number1,286.
Citation102 F. 96
PartiesMISSOURI, K. & T. RY. CO. v. ELLIOTT et al.
CourtU.S. Court of Appeals — Eighth Circuit

[Copyrighted Material Omitted]

The Missouri, Kansas & Texas Railway Company owns and operates a line of railroad extending from the state of Missouri through Kansas and the Indian Territory, into the state of Texas. The railway company had a train dispatcher at McAlester, in the Indian Territory, for the purpose of ordering and directing the movement of its trains on the division of its road between McAlester and Muskogee, in the Indian Territory. On the 11th day of June, 1892, the company through its train dispatcher, ordered one of its freight trains to move southward over its track between McAlester and Muskogee, and at the same time ordered another freight train to move northward over the same track. These two trains were ordered to move in opposite directions over the same part of a single track at the same time, with the result that a head-end collision of the trains ensued without any fault on the part of the conductor or engineer of either train; the collision being due solely to the erroneous orders of the train dispatcher. in the wreck of the trains produced by the collision, William H. Elliott, a fireman on one of the trains, was killed. This action was brought by Lydia J. Elliott, the widow, and Georgia C. Elliott and Nannie F. Elliott, the children, of the dead fireman, against the railway company, to recover damages for his death. The act of negligence charged against the railway company was the issuing by the railway company of the conflicting orders which resulted in the collision and wreck of the trains. The answer was a general denial. There was a trial to a jury, which resulted in a verdict and judgment for the plaintiffs, whereupon the defendant appealed the case to the United States court of appeals in the Indian Territory, which court affirmed the judgment of the trial court, and thereupon the defendant removed the case by writ of error into this court.

Clifford L. Jackson, for plaintiff in error.

William T. Hutchings, Preston C. West, and Wolfe & Hare, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

The protests of this court against multiplied and frivolous assignments of error seem to be of no avail. There are 103 assignments of error in this case, of which not more than 4 or 5 are of sufficient gravity to challenge or justify our attention. It was apparent from the inception of this case that, if the railway company was responsible for the results of the conflicting orders it issued for the movement of its trains, it had no defense to the merits of this action, and that the only question to be litigated was the amount of the plaintiffs' damages. It is obvious from an inspection of the record that the defendant realized this fact, and, to compensate for the lack of merits, resorted to the tactics and methods not unusual in such cases, but which it pursued with more zeal and pertinacity and carried to greater heights than common.

On the 27th day of November, 1897, the defendant filed an application for a continuance of the cause, which was overruled, and this ruling of the court is one of the principal errors assigned and insisted on. Nearly a century ago the supreme court of the United States said, 'It may be very hard not to grant a new trial or not to continue a cause, but in neither case can the party be relieved by a writ of error. ' Insurance Co. v. Hodgson, 6 Cranch, 206, 218, 3 L.Ed. 200. And this rule has been firmly adhered to from the time it was first promulgated, in Woods v. Young, 4 Cranch, 237, 2 L.Ed. 607, to the present day, and is obligatory upon all the appellate courts of the United States. McFaul v. Ramsey, 20 How. 523, 15 L.Ed. 1010; David v. Patrick, 12 U.S.App. 629, 635, 6 C.C.A. 632, 57 F. 909; Manufacturing Co. v. Hess, 98 F. 56, 38 C.C.A. 647; Drexel v. True, 36 U.S.App. 611, 20 C.C.A. 265, 74 F. 12; Electric Co. v. Dick, 8 U.S.App. 99, 3 C.C.A. 149, 52 F. 379; Railway Co. v. Nelson, 2 U.S.App. 213, 1 C.C.A. 688, 50 F. 814. Moreover, the affidavit for a continuance made by the defendant's counsel did not comply in any respect with the requirements of the statute governing such applications, and was, from every point of view, wholly without merit. This clearly appears from the facts disclosed by the record, some of which we refer to here on account of their bearing on other assignments of error to be hereafter considered.

The collision which resulted in the death of the fireman, Elliott, occurred on the 11th day of June, 1892; this suit was begun on the 9th day of March, 1893; the defendant applied for and obtained the change of venue from one judicial division to another February 1, 1894; and the affidavit for a continuance was filed November 27, 1897. Soon after the commencement of the action, the plaintiffs, upon due notice to the defendant, took the depositions of J. F. Andrews, the conductor, and O. E. Thoman, the locomotive engineer, on the train going south, and of John Smythe, the conductor on the train going north, at the time of the collision. Engineer Thoman produced, and made it part of his deposition, the manifold copy of the train dispatcher's order under and in accordance with which he and his conductor were running the south-bound train; and Conductor Smythe, having given to one of the defendant's employees, on a promise to return it, which was not done, the manifold copy of the train dispatcher's order under and in pursuance of which he and his engineer were running the north-bound train, testified to its contents. The plaintiffs also took the deposition of John Sullivan, the defendant's train dispatcher at Denison, Tex., whose division extended from Denison to Muskogee, in the Indian Territory; the train dispatcher's office at McAlester having been removed from that place to Denison after the collision. Mr. Sullivan testified that he, as chief train dispatcher for the defendant over the division mentioned, had possession of the train sheets and order book of the company kept by the train dispatcher in the train dispatcher's office in McAlester at the time of the collision, and prior to the removal of the office to Denison; and he produced a sworn and compared copy of the train dispatcher's order to Conductor Smythe, taken from the original order book in his possession. He also testified to the movements of the colliding trains, as shown by the train sheet, up to the stations on either side of the point of collision, when there was 'no further news of same.' All of these witnesses were in the employ of the defendant, in the same capacity, continuously from the time of the collision down to and at the time of the trial. At the taking of these depositions the defendant appeared by counsel and cross-examined the witnesses, and the depositions were returned to the court, and from the time they were taken until the day of trial they were open to the inspection of the parties. It appears from the statements in the application for a continuance that the company took no steps to prepare for the trial of the case until about the 1st of October, 1897,--more than five years after the collision, and more than four years after the suit was brought. It is averred in the affidavit that about the 1st of October, 1897, the defendant's counsel notified the claim department of the defendant company to find out and report all about the family of W. H. Elliott, to the end that it might be known whether the plaintiffs were the only proper parties entitled to sue, and the affidavit further stated 'that said Mrs. Lydia J. Elliott claimed that she was still unmarried, but defendant believes, if it were given full opportunity to investigate this case, it would be able to show that she has remarried since the death of her husband, William H. Elliott, and is now well provided for, and no longer dependent upon recovering a judgment in this case,' and that, if further time was given it to investigate the facts, the defendant believed it could show that W. H. Elliott was a 'profligate man,' and would not have expended on his minor children a 'proper portion of his earnings.' Another alleged ground for continuance was that the widow had consented in writing to a continuance, so far as she was concerned, on account of the death of her counsel; but it is nowhere pointed out how this action of the widow, which was brought about by the defendant's claim agent, operated to hinder or delay defendant in the preparation of its case for trial, nor is it pointed out by the specific statement of any fact wherein the defendant would have been any better prepared for trial if the widow had never consented to a continuance. The counsel for the defendant, who, in his affidavit for a continuance, declared he believed he could show, if the case was continued, that the statement of Mrs. Elliott that she was still a widow was false, and that she had remarried, seems to have changed his views of the lady; and he now appears deeply solicitous for her rights, and complains that 'the trial court overruled this application for a continuance, and forced the case to trial in the absence of the widow, who was not represented either in person or by counsel; * * * and she had a right to be represented, and to have an opportunity to secure an attorney to take the place of the one who had died. ' The widow is not here making any such complaint, and the defendant's counsel cannot be heard to make it for her.

Referring to the conductors and locomotive engineers on the colliding trains, whose depositions the plaintiff had taken, the statement is made in the affidavit 'that, if such reasonable...

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