Nelson v. New Orleans & N.E.R. Co.

• Decision Date: 05 March 1900
• Docket Number: 871.
• Citation: 100 F. 731
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: NELSON v. NEW ORLEANS & N.E.R. CO.

100 F. 731

NELSON v. NEW ORLEANS & N.E.R. CO.

No. 871.

United States Court of Appeals, Fifth Circuit.

March 5, 1900

The plaintiff in error sued the defendant in error in the circuit court of Clarke county, Miss., for $10,000 as damages for causing the death of plaintiff's intestate, Joseph L Nelson. On the application of the defendant the case was removed to the circuit court of the United States for the Southern district of Mississippi. In one of its counts the plaintiff's declaration averred: 'That the New Orleans & Northeastern Railroad Company, the defendant, is and was at the time of the infliction of the injuries hereinafter complained of, a corporation engaged in carrying freight and passengers to and from the city of Meridian Mississippi, to the city of New Orleans, Louisiana, and that the railroad track of said defendant passes through the town of Pachuta, in the county of Clarke, and state of Mississippi. On or about the 12th day of September, A.D 1893, the said Joseph L. Nelson was in said town of Pachuta, in said county and state, near the depot building in said town, when one of the defendant's south-bound passenger trains ran through said town, which is incorporated under the laws of the state of Mississippi, at the great and unlawful speed of forty miles per hour, and without any warning to the said Joseph L. Nelson, and without any fault or negligence on his part, and through the gross negligence and the willful and malicious wrong of the employes of defendant, who were at the time its agents, in charge of said train, ran over, mutilated, and fatally wounded the said Joseph L. Nelson, from the effects of which injuries and wounds the said Joseph L. Nelson died in about fifteen or twenty minutes thereafter; that by reason of the infliction of said wounds and injuries by the said defendant upon the said Joseph L. Nelson he suffered intense and indescribable mental and physical pain from the time of the infliction of the same up to the time of his death, all of which injuries, wounds, pain, and suffering were brought about and produced by the negligent, willful, and malicious conduct of the said employes of defendant and without any fault or negligence of the said Joseph L. Nelson. ' The defendant filed a plea of not guilty, and a plea alleging contributory negligence on the part of the deceased, Joseph L. Nelson. The case was tried on these pleas. It was proved that Joseph L. Nelson, plaintiff's intestate, was the husband of the plaintiff, and was an employe of the defendant, engaged in assisting in constructing a depot building for the defendant, at Pachuta, Clarke county, Miss., at the time of receiving the injuries alleged in the declaration, which resulted in his death.

The plaintiff introduced Dr. L. S. Brownlee as a witness, who testified that:

'He was a practicing physician, residing at Pachuta, Clarke county, Mississippi, about 300 yards from the defendant's depot, and that he resided in said town on the 12th day of September, 1893. He saw Joseph L. Nelson on the 12th day of September, 1893. He was called to see him on the day that he died at Pachuta, in said Clarke county, Mississippi, at about 8:30 o'clock a.m. on said day. He was called to attend him in the capacity of a physician, and found him near the depot building in said town. He supposed it was about ten minutes after Joseph L. Nelson was struck by defendant's south-bound train before he reached his side. He found that his ribs were fractured, and that he was considerably bruised in the side and back and in other places. The said Joseph L. Nelson lived about one-half hour after the witness reached him, and he seemed to suffer intense pain. He was conscious for some time after the witness reached him, but did not recognize witness, or any one else, so far as witness knew. The south-bound passenger train on the New Orleans & Northeastern Railroad had gone south through Pachuta only a short time before witness reached Mr. Nelson. The south-bound passenger train was about two hours late, and reached Pachuta on that day about 8:30 o'clock a.m. The train ran through the town rapidly, but the witness could not tell how fast. Witness was well acquainted with the surroundings of the depot building and railroad tracks of the defendant company in the town of Pachuta, having lived in said town for many years past. The town of Pachuta was an incorporated town, and had a mayor and other town officers on the 12th day of September, 1893, the day Nelson was killed. The witness made and swore to the correctness of the following plat:

(Image Omitted) 'The distances indicated on said plat were correct, the witness having made the measurements with a tapeline. A mortar box had been made between the main line of the defendant railroad and the side track of the railroad just west and opposite the depot building which was then being constructed. The side track of the railroad was and is west of the main track of said company, and the box in which mortar was being made up was situated between the main track and the side track west of the depot. The distance between the side track and the main track lying opposite the depot building was 10 feet and 5 inches. A spur track had been built by the defendant, running off from the main line just north of the depot building on the east side of the main track, as shown on the plat. From the mortar box and from the depot building on the opposite side of the main track to the point where the track on the main line began to curve northwestward it is 330 feet. At this distance of 330 feet from the mortar box and from the depot building the main line curved northwestward. This is a considerable curve. There were some cars standing on the side track west of the main line, which cars extended southward below the depot and northward some distance up the side track from the depot building and from the mortar box standing between the rails of the main line, and the said side track was covered by said cars. The said cars on said side track extended sufficiently north to obstruct the view of a person standing between the rails of the main line and the side track where the mortar box was situated, so that a person standing at or near said mortar box, or even on the main line and track between the mortar box and the depot building then being constructed, could not see a train coming from towards the north very far north of the curve in said main line or track. The distance between said mortar box and the point where the main line makes a curve is 330 feet, and a person standing at or near the mortar box could not see a train approaching from the north very far beyond this curve if the side track was filled up with cars. There was standing on the west side track, on the 12th of September, 1893 (the same day that Nelson was killed), a car load of lime and sand, which lime and sand were being used in the mortar box for making mortar to be used in the erection of chimneys and flues for said depot buildings. The lime and sand were taken out of the car and used by Nelson in making up mortar in the mortar box. There were also brick in the said car with said lime and sand, which brick were being used in the construction of the chimneys and flues for said depot building. Nelson made up the mortar in the mortar box, and carried the same across the main track to the building which was being constructed, and into the building, to be used about said flues and chimneys. Between the framework of the depot building and the main track of the defendant company there was a pile of lumber 15 or 20 feet long and about 4 feet high, lying parallel with the main track, and this lumber extended from one end to the other of the depot building on the west side, and prevented a person from walking directly across from the mortar box to the depot building. A person coming from said mortar box to said depot building would be required to go either to the north end or to the south end of the building. He could not go directly across the main track, and reach said depot building, because he would be obstructed by said pile of lumber. He would be required to go northward from the mortar box about 10 or 15 feet, and then go east, to get around said pile of lumber to reach said building, or go diagonally across the main track, so as to cross north of the lumber pile. This lumber piled up between the depot building and the main track of the defendant company extended up to within a few feet of the east rail of the main track, which rail was so close to the west edge of the pile of lumber as to prevent a person from going between said east rail and the pile of lumber so as to be safe from an approaching train, the space between the pile of lumber and the east rail of the main track not being sufficient to prevent his being struck by an approaching train. At the time that Nelson was killed he was working for the defendant company. Pachuta at the time was a small town, containing 150 or 200 inhabitants. The most of the town is on the eastern side of the railroad tracks, and at some distance from the depot building; but there are some residences on the west side, several of them not very far from the depot. There is a railroad crossing for a public road to the north of the depot building about 210 feet, as indicated by...