Palen v. Wheelock

• Decision Date: 24 May 1926
• Docket Number: No. 7150.,7150.
• Citation: 13 F.2d 34
• Parties: PALEN v. WHEELOCK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

13 F.2d 34 (1926)

PALEN v. WHEELOCK et al.

No. 7150.

Circuit Court of Appeals, Eighth Circuit.

May 24, 1926.

W. H. Douglass, of St. Louis, Mo. (Douglass, Inman & Horsefield, of St. Louis, Mo., on the brief), for plaintiff in error.

Edward C. Crow, of St. Louis, Mo. (Jones, Hocker, Sullivan & Angert, of St. Louis, Mo., on the brief), for defendants in error.

Before SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

Hugh Palen (hereinafter called plaintiff) brought this action against the receivers of the Chicago & Alton Railroad Company (hereinafter called defendants), to recover damages for personal injuries.

Plaintiff was injured while attempting to board the train of the defendants while it was departing from the station at Alton, Ill., on November 26, 1923. At the time of his injury, plaintiff was a man 47 years of age and was employed as a railroad section hand. On the day of the accident plaintiff desired to travel on defendants' train No. 2 from Alton to Godfrey, Ill., and for that purpose went to defendants' station at Alton. When he reached the station, train No. 2 had already arrived, and was standing at the station. Plaintiff started to get onto the train without a ticket, but, seeing the conductor at the station door, was of the opinion that he would have time to purchase a ticket and went to the ticket window and purchased a ticket for Godfrey. While plaintiff was waiting for his change, the conductor left the station and started toward the train. Upon receiving his change, plaintiff went out for the purpose of boarding the train.

The train consisted of eight cars, arranged in the following order, from front to rear: Mail car, combination baggage and smoking car, two chair cars, a dining car and three parlor cars. When the train arrived at the station, the vestibule doors at the rear end of the combination car and the front end of the first chair car were opened, and a train porter was there present to assist passengers on and off the train. The head end of the second chair car was also opened, and Steiner, a flagman and brakeman, was stationed there. When the conductor came out of the depot, he looked to see if the train work had been completed, and if the platform was clear. Steiner, the brakeman, signaled the conductor that everything was clear at the rear of the train, and the conductor gave the signal to the engineer to proceed out of the station. The conductor then boarded the train at the opening of the combination car.

Plaintiff testified that he followed shortly behind the conductor; that the train started forward about the time the conductor boarded the train; that when plaintiff reached the train it had proceeded forward about a half a car length and was traveling three or four miles an hour; that he took hold of the hand rails, put his left foot on the step and had his right foot on the platform, and that the conductor closed the outside door of the vestibule (the door proper as distinguished from the trap door that closed down over the steps) against him and pushed him off the train; that he fell alongside the train, and that the wheels ran over his left leg five or six inches below the knee, causing the injuries for which he seeks recovery.

Plaintiff also testified that he undertook to enter the train at the front end of the second day coach, which would be the chair car at which Steiner, the brakeman, was stationed.

The undisputed evidence showed that when the vestibule doors are opened to permit passengers to leave and board the train, the outside door is first opened; that it swings back against the front end of the coach proper; that the trap door is then raised up outside of and against the vestibule door; and that because of the foregoing it is impossible to close the vestibule door without first lowering the trap door.

Steiner testified that just before the train started, the conductor was near the entrance to the combination car; that he signaled the conductor that everything was all right at the rear of the train, and that the conductor then signaled the engineer to proceed out of the station. Steiner testified, that thereupon he boarded the train and lowered the trap door and started to close the vestibule door, when he saw a man's hand take hold of the handle just outside the vestibule opening; that he opened the vestibule door and raised up the trap door; that the man fell down; and that he did not see the man until after the trap door was closed and he was in the act of closing the vestibule door.

The plaintiff testified positively that it was the vestibule door and not the trap door that struck him. He testified further that just as he put his foot on the step and took hold of the hand rails, the door was coming shut.

Samuels, an assistant baggageman, who was on the platform at the time of the accident, testified that the trap door was down when plaintiff took hold of the hand rails and attempted to board the train, and that the motion of the train threw him around against the trap door, and that he fell down alongside of the train.

McKee, the baggageman, testified that he saw Steiner signal the conductor, the conductor signal the engineer, the conductor board the train at the opening of the combination car, and Steiner board the train at the front end of the second chair car; that as the train moved away from the depot it was traveling around a curve and that he was on the inside of the curve; that he saw plaintiff come out of the station and run toward the train and attempt to board it at the front end of the second chair car, the entrance where Steiner boarded the train; that the train had traveled two car lengths and had attained a speed of about eight miles an...