Pennsylvania Co. v. Paul

• Decision Date: 03 November 1903
• Docket Number: 1,190.
• Citation: 126 F. 157
• Parties: PENNSYLVANIA CO. v. PAUL.
• Court: U.S. Court of Appeals — Sixth Circuit

126 F. 157

PENNSYLVANIA CO. v. PAUL.

No. 1,190.

United States Court of Appeals, Sixth Circuit.

November 3, 1903

Carey &amp Mullins, for plaintiff in error.

Welty &amp Albaugh, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was an action brought by the administrator of the estate of Joseph Ess, deceased, to recover damages for the death of Ess through the alleged wrongful act of the defendant railroad company. The case was submitted to a jury, and a verdict for $10,000 recovered, which the court, upon a motion for a new trial, refused to set aside. It is now brought here for review.

It appears from the proof that on the night of October 29, 1900 there was a political meeting at Alliance, Ohio. The Pennsylvania Company ran special or excursion trains to Alliance for this meeting; among others, three trains from Canton and one from Massillon, two stations west of Alliance. Joseph Ess was the leader of the Massillon Band, and in that capacity attended the meeting. The ticket bought for him was dated October 29th, and provided for a first-class passage from Massillon to Alliance and return, the return trip to be commenced leaving Alliance 'not later than special train October 29 1900. ' A great crowd attended the meeting, and after it was over gathered at the station to take the trains home. Ess marched to the station with the band. No separate train was provided for the Massillon people. The first train or section which drew up to the station headed for the west was announced for Maximo, Louisville, Canton, and Massillon. It was at once filled with people, who crowded the seats, aisles, platforms, and steps, some even climbing on top of the cars. Those on top were compelled to get off, and efforts were made to induce those on the platforms to step down, but without avail. Thus overloaded, the first train or section pulled out; and the second, containing 14 cars, pulled up. The same announcement was made that the train was for Maximo, Louisville, Canton, and Massillon, and it also was soon filled to overflowing, the seats, aisles, platforms, and steps being crowded. Ess boarded this train along with other members of the band. The proof did not show what car he took, or what place upon the car he secured. The train stopped at Louisville, about five miles of Canton, and a number of passengers got off. At this station, Ess came walking along the platform, and was called by Ertle, a witness, to get upon the steps of the front platform of one of the cars with him and others. This he did, and, taking the only space unoccupied, sat upon the next to the lower step on the left side of the front platform, with his feet on the lower step. His position was next to the hand rail on the end of the car, another man sitting upon the same step between him and the body of the coach. Hurford, a witness, who was standing next to Ess, and leaning with his back against the hand rail, testified that when Ess took his seat he threw his right arm around this rail, and with the other held his band instrument.

There was testimony going to show that the train ran at a moderate rate of speed from Alliance to Louisville; then at a high rate of speed until it approached the target near a bridge crossing a small creek east of Canton, where it slowed up. After passing the target, and as the car upon which Ess was riding was crossing the bridge, there was a violent lurch or jerk of the car, caused by the sudden increase of the speed of the train, and Ess fell or was thrown off the car, and was crushed and killed. A witness who saw the remains testified that all the joints of the right arm were dislocated 'pulled out of joint,' 'stretched out'-- from which it was argued that Ess was violently thrown from the train by the jerk or lurch of the car at a time when, to protect himself, he had hold of the rail to his right.

On behalf of the administrator it was contended that the railroad company was guilty of negligence first, in permitting the train to leave Alliance overcrowded, so that Ess was compelled to ride on the platform; and, second, in running this overcrowded train in a careless manner, so that a jerk or lurch was given the car sufficient to throw Ess off to his death. On the other hand, it was insisted, in the first place, that the railroad company was not liable for the overcrowded condition of the train, because it did everything it could to prevent it, having on hand at Alliance cars and trains enough to provide all return passengers with seats, of which it gave them notice; and, in the second place, that, if Ess was thrown off the car by the alleged jerk or lurch (which it denied, insisting that he did not have hold of the rail, was possibly asleep, and fell off), it was the result of his own fault; that he was guilty of contributory negligence riding on the platform, and his administrator could not recover. There was testimony on the part of the railroad company tending to show that sufficient trains and cars were on hand at Alliance to carry all the excursionists home without riding upon the platforms, and that the employes of the railroad company protested against the overcrowding of the trains, notifying the passengers that, if they waited, ample accommodations would be provided. On the other hand, testimony was introduced tending to show that there was no genuine effort on the part of the railroad...