Smith v. St. Louis, I.M. & S.R. Co.
| Decision Date | 02 June 1914 |
| Docket Number | 2325. |
| Citation | 214 F. 737 |
| Parties | SMITH v. ST. LOUIS, I.M. & S.R. CO. et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jere Horne, of Memphis, Tenn., for plaintiff in error.
A. W Biggs and J. W. Canada, both of Memphis, Tenn., for defendants in error.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
This was an action brought by Smith, as administrator, to recover damages for the death of his intestate, James Mason, alleged to have been caused by the joint negligence of five defendant railroad companies. These railroad companies are classified in the declaration into two groups, the first comprising the St. Louis, Iron Mountain & Southern Railroad Company, the Iron Mountain Railroad Company of Memphis, and the Missouri Pacific Railroad Company, which in terms are alleged to be owned and operated by and under the management and control of what is known as the Missouri Pacific System, and the other comprising the St. Louis & San Francisco Railroad Company and the Kansas City & Memphis Railway & Bridge Company, which likewise are alleged to be owned and operated by and under the management and control of what is known as the Frisco System; that the defendants owned and operated various interstate lines of railroad; and that, at the time of the wrongs and injuries complained of, the railroads composing the Frisco System owned and operated 'the bridge and the lines over the bridge across the Mississippi river,' at Memphis, Tenn.
The cause of action, as stated in the declaration, is in substance this: Mason, while in the employ of the St. Louis Iron Mountain & Southern Railroad Company as head brakeman and on the night of May 28, 1910, left Memphis on a west-bound freight train of that company, and in crossing the bridge into Arkansas was knocked from the top of one of the cars by a low beam spanning the track at the Arkansas end of the bridge, receiving injuries which resulted in his death and while so at his post of duty met his death through the negligence of the defendants. Further that this beam was too low to permit a man standing upon a large freight car to pass it in safety; that this was due to negligent construction and maintenance on the part of the St. Louis & San Francisco Railroad Company and the Kansas City & Memphis Railway & Bridge Company, because these two companies then owned and operated the bridge; that these companies by contract permitted their codefendants to use the bridge in crossing the Mississippi river; that the defendants either knew, or by the exercise of ordinary care could have known, that the beam was too low, but that the intestate could not; that all the defendants undertook jointly to operate over the bridge the train on which Mason was riding and injured; and that they failed to provide and maintain the usual telltales at the approaches of the bridge, and so failed and neglected to give to Mason this necessary warning of the presence of the low beam. Also that the companies composing the Missouri Pacific System, which included Mason's employer, failed to furnish Mason with a safe place to work, and that they were negligent in contracting for and using a bridge dangerous, as this one was, in construction and maintenance in the particulars stated.
The declaration was met and denied by the several defendants under pleas of not guilty; and special pleas of contributory negligence were also interposed. At the close of plaintiff's evidence, directed verdicts were returned in favor of three of the companies, namely, the Kansas City & Memphis Railway & Bridge Company on motion of its counsel, and the Missouri Pacific Railroad Company, and the St. Louis & San Francisco Railroad Company, on he court's own motion. On plaintiff's motion at the close of all the evidence, a nonsuit was granted in favor of the Iron Mountain Railway Company of Memphis. Thus the case was at last reduced to a controversy between the plaintiff and the company employing Mason. The verdict was in favor of that company, and on the overruling of a motion for a new trial the plaintiff prosecuted error.
No complaint is made touching the direction of a verdict in favor of the Missouri Pacific Railroad Company; but error is assigned respecting like action as to the other two companies. It is stated in the assignment concerning the ruling in favor of the Kansas City & Memphis Railway & Bridge Company that it was based upon the grounds: (1) 'There was no proof of ownership;' and (2) 'there was no evidence going to show circumstances under which the bridge was being used. ' Reasons like these were stated by counsel in support of the motion to direct, and it may be that they were accepted by the court as satisfactory, but this does not appear. These reasons, however, serve in part to indicate the difficulty with plaintiff's case at the close of his evidence. Apart from some language used by one of the counsel for this railroad company in his opening statement to the jury, which apparently was neither meant by him nor understood by the court to be an admission of ownership in that company of the bridge, nothing tending to show such ownership appears in plaintiff's evidence. True, one of plaintiff's witnesses stated in effect that the bridge belonged to this company; but it appeared that he possessed no knowledge upon the subject and his statement was excluded. Plaintiff's counsel maintains, however, that the plea of not guilty is not a denial of the allegation of ownership; that consequently ownership in the Kansas City & Memphis Railway & Bridge Company of the bridge and the tracks thereon must be treated as an admitted fact; and that a legal presumption of operation by that company follows. This ignores the averment of the declaration that the bridge and the railroad tracks upon it were owned and operated by both companies comprised in the Frisco System, to wit, the company just named and the St. Louis & San Francisco Railroad Company. However, if we pass by this, the theory of admitted ownership is thus made the sole basis, not alone of the presumption of operation, but, in view of plaintiff's lack of evidence, also of the further averment of the declaration that these two companies were negligent in the construction and maintenance of the bridge. Such ownership, therefore, became vital to plaintiff's right of recovery against either of these companies, for otherwise neither owed any duty nor bore any legal relation to Mason. This is more clearly seen through the practically admitted facts that Mason was not in the employ of either of those companies, but was in that of another and distinct company which owned and was operating the freight train on which he was riding, at the time he received his injuries.
It follows that the most essential issue so tendered to the Kansas City & Memphis Railway & Bridge Company, as well as the St. Louis & San Francisco Railroad Company, was whether they or either at the time of the accident owned the bridge which, as alleged, had been negligently constructed and at the date of the injury was, with its tracks, negligently maintained and operated; and the...
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