Southern Pac. Co. v. Huntsman

• Decision Date: 03 November 1902
• Docket Number: 1,667.
• Citation: 118 F. 412
• Parties: SOUTHERN PAC. CO. v. HUNTSMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

118 F. 412

SOUTHERN PAC. CO. v. HUNTSMAN.

No. 1,667.

United States Court of Appeals, Eighth Circuit.

November 3, 1902

Jeptha D. Howe, for plaintiff in error.

W. L Maginnis, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

THAYER Circuit Judge.

On December 11, 1900, Arthur Huntsman, the defendant in error was a fireman on an engine belonging to the Southern Pacific Company, the plaintiff in error, which was hauling one of its trains westwardly on its railroad. At a point from 2 to 2 1/2 miles distant from a station in the state of Utah called 'Fenelon,' it ran into another freight train of the Southern Pacific Company, which was running east at the rate of about 25 miles an hour. The engine of the east-bound train was in charge of an engineer by the name of Sadler, and the collision occurred because Sadler, instead of waiting at Fenelon for the west-bound train to pass, as he had been ordered to do by the train dispatcher, in violation of his orders ran past Fenelon until he came into collision with the west-bound train. The evidence tended to show that the collision occurred on a curve; that the engine of the east-bound train was not discovered until it was about 50 yards distant from the engine of the west-bound train, on which Huntsman was fireman; that, after the discovery of the train approaching from the west, it was impossible to stop the trains in time to avoid the collision and that, in consequence of that fact, Huntsman leaped from the cab of his engine, and was injured to a considerable extent. He brought the present action to recover damages for the injury which he had sustained in consequence of the collision, and alleged, as a ground of recovery, that Sadler was incompetent to act as engineer of a locomotive engine upon the railroad in question, or upon any railroad, by reason of his being a careless and forgetful person, which fact, as it was alleged, was well known to the defendant company, or, in the exercise of reasonable and ordinary care, ought to have been known. The principal error assigned, and the one that is argued at the greatest length, is that the court erred in refusing to give a peremptory instruction directing the jury to return a verdict in favor of the defendant company. This exception to the action of the lower court, in view of its importance, will be first noticed.

The contention that peremptory instruction in favor of the defendant company ought to have been given is based upon the ground that there was no substantial evidence tending to show that Sadler was an incompetent engineer, or that the defendant had notice of the fact prior to the collision. To sustain the charge of incompetency, the plaintiff below introduced the following evidence: First, a record kept by the company itself, which showed that Sadler had been in its employ from time to time since August 12, 1892, serving in the capacity of fireman, car inspector, and hostler; that since November, 1898, he had acted as engineer,-- a part of the time as engineer on a switch engine, and later, since February, 1899, as engineer on the main line; that on August 24, 1900, he had been suspended for overlooking a train order, though no collision resulted therefrom; that he had remained suspended until December 5, 1900, when he was reinstated, and that only six days thereafter, to wit, on December 11, 1900, by disobeying or forgetting his orders and running past Fenelon, he had occasioned the collision which gave rise to the present action. There was other evidence which tended to show, and did show, that in August or July, 1899, a train on the defendant's road, which was running west on regular time, had to back up a mile or two because it met Sadler...