Northern Pac. R. Co. v. Craft

• Citation: 69 F. 124
• Decision Date: 24 June 1895
• Docket Number: 205.
• Parties: NORTHERN PAC. R. CO. v. CRAFT.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

69 F. 124

NORTHERN PAC. R. CO. v. CRAFT.

No. 205.

United States Court of Appeals, Ninth Circuit.

June 24, 1895

Dolph Mallory, Simon & Strahan and Joseph D. Redding, for plaintiff in error.

Watson Beekman & Watson (Andros & Frank, of counsel), for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and KNOWLES, District judge.

GILBERT Circuit Judge.

Julia Craft, the administratrix of the estate of Benjamin P. Craft deceased, brought an action in the circuit court of the United States for the district of Oregon against the Northern Pacific Railroad Company to recover damages for the death of the plaintiff's intestate, alleging that on August 15 1892, while said Benjamin P. Craft was lawfully engaged in the course of his employment as a car accountant of the Northern Pacific Terminal Company, the defendant carelessly and negligently, without ringing a bell or having sufficient lights displayed, or giving warning, or keeping a lookout on the track in front, ran one of its engines over the said Benjamin P. Craft, causing his death. The defendant denied this averment of negligence, and asserted the defense of contributory negligence, alleging that the accident resulted from the negligence of said Craft in being intoxicated, and while in that condition lying down and going to sleep upon the track. The deceased was a car accountant employed by the Northern Pacific Terminal Company, a corporation which had charge of the yards, station, and other terminal facilities at Portland, which were jointly used by the Northern Pacific Railroad Company, the Union Pacific Railroad Company, and the Southern Pacific Railroad Company, under contracts with the said Northern Pacific Terminal Company. The work of the said deceased consisted in taking the numbers and weights of cars that were brought into the yards by the various railway companies, and such service required his presence in different parts of the yards. The accident which caused his death occurred at 2 o'clock in the morning. He was last seen before the accident at about 1:30 o'clock. At that time he was about three or four hundred feet north of the depot, going north on the platform alongside the track, and carrying a lighted lantern. The engine that caused his death came in at about 12:45, with a passenger train, and was shortly afterwards taken about a quarter of a mile north of the depot to the coal bunkers, there to be coaled up, and it was in charge of Stapleton, an engine hostler, and Berry and Cobb, two engine wipers. After being coaled up, the engine started back toward the depot, on its way to the roundhouse. Two switches had to be thrown to enable it to run to the roundhouse, one connecting the coal-bunker track with the main line, the other the main line with the roundhouse track. A plank platform extends from the depot to a point about 50 feet north of where the deceased was struck. There are two tracks upon this platform. The switch connecting with the roundhouse track is about 200 feet south from the north end of the platform. When the engine had approached within 150 feet of this switch, Berry jumped down and ran ahead to throw it. He had reached the switch, and was about to throw it, when he heard Craft cry out, and looking around he saw him being pushed along on the end of the engine pilot. Berry shouted twice to the engineer to stop, but the body of Craft passed under the engine immediately after Berry first saw him. The engine was not stopped immediately in response to Berry's call, and Berry climbed into the cab, and took hold of Stapleton's arm, and told him that the engine had run over a man. Cobb was just then getting down from the engine. Stapleton was sitting in his seat, and did not have hold of the lever. Craft's lantern was found 150 feet from his body. It was lying alongside the track, overturned and unbroken, but with the light out. Stapleton testified that the engine was running at about four miles an hour, and Berry testified that he rang the bell until he got off the engine to throw the switch. There was no evidence that the bell was rung afterwards. The jury returned a verdict for the plaintiff in the sum of $3,200.

Error is assigned to the action of the trial court in admitting evidence tending to show that Stapleton, who was in charge of the engine at the time of the accident, was intoxicated, or under the influence of liquor. It is contended that the complaint contained no allegation of such intoxication and did not allege the same as a specific act of negligence, and that there was consequently no ground upon which such evidence was admissible. The evidence so admitted was the testimony of the witness Berry, who said, in answer to a question concerning Stapleton's condition, that he did not know whether or not Stapleton had been drinking that evening, but that he had on occasion seen him drink a glass of beer, and he finally stated that he thought he had seen him drink one glass that night. There is nothing in this testimony which would tend to show that Stapleton was intoxicated at the time of the accident, and it is impossible to perceive how the plaintiff in error could have been injured thereby. But, in any view of the purport of that portion of the evidence, there was no error in its admission. The fact if proven, that the defendant's servant whose negligence may have caused the injury was intoxicated at the time of the accident was not in itself an act of negligence, but it was a circumstance to be considered with the other evidence, tending to prove the charge laid in the complaint. The negligence, if any there was, upon the part of the defendant's servants, consisted in their failure to take proper precautions while driving the engine through the yard, not in the fact that Stapleton or any one else was intoxicated. But evidence of such intoxication might properly be considered in connection with the other proof which was adduced showing Stapleton's actions and conduct at the time the accident occurred. Wynn v. Allard, 5 Watts & S. 524. Williams v. Edmunds, 75 Mich. 92, 42 N.W. 534.

It is also assigned that the court erred in declining to instruct the jury, at the close of the testimony, to return a verdict for the defendant. It is contended that such instruction should have been given, upon two grounds--First, that there was no evidence of negligence on the part of the defendant; and, second, that the negligence of the deceased contributed to his death. Taking the whole testimony into consideration, we are unable to say that there was not evidence sufficient to go to the jury tending to show negligence of the defendant. The facts disclosed unquestionably gave room for the inference that proper precaution may not have been taken by the men in charge of the defendant's engine to give warning of the engine's approach at the time of the accident. Berry, it is true, testifies that a bell was rung. He says that he rang it from the time he threw the switch to let the engine on the main line until he got off the engine to throw the second switch. But he also says that he was at the same time looking out for the place to get off the engine, and that he has no knowledge whether or not the bell was rung after he got off. There was no other testimony that a bell was rung, and the jury may have reached the conclusion that, while Berry's testimony was in the main correct, the ringing may not have been continuous up to the time when he got off the engine. So far as keeping a lookout is concerned, it appeared that that duty devolved upon Stapleton. He testified that he did not see either the deceased or his lantern. His failure to see him was not on account of any obstruction, because the track was clear; nor was it on account of darkness, for the evidence shows that the headlight of the engine cast a light 150 feet ahead, and that there was an electric arc light not more than 300 or 400 feet distant. The only inference is that he was not keeping a lookout; otherwise it is not apparent that he could have failed to see the deceased. The evidence of Berry, moreover, tended to show that Stapleton was not attending to his duties. Berry's manner of testifying indicated an unwillingness to fully disclose the facts, but enough appears from his testimony to show this much, at least: That when he shouted the engine was not stopped; that he then jumped on the engine; that Stapleton and Cobb were there; that he laid his hand upon Stapleton and informed him that a man had been run over; and that Stapleton was then sitting on his seat, and said nothing, but threw his legs around the lever and got down off the engine. On being asked whether Stapleton was awake, he said: 'I do...