Southern Ry. Co. v. Fisk

• Decision Date: 07 January 1908
• Docket Number: 1,406.
• Citation: 159 F. 373
• Parties: SOUTHERN RY. CO. v. FISK.
• Court: U.S. Court of Appeals — Seventh Circuit

159 F. 373

SOUTHERN RY. CO. v. FISK.

No. 1,406.

United States Court of Appeals, Seventh Circuit.

January 7, 1908

The defendant in error was the plaintiff below, and recovered judgment against Southern Railway Company, as defendant, in an action of trespass on the case, from which this writ of error is brought by the railway company. For convenience the parties are hereinafter referred to under the designation of plaintiff and defendant, respectively, as in the trial court. The plaintiff, a boy of 12 years of age, was attempting to cross the railroad tracks on Converse avenue, in East St Louis, about 5 o'clock in the evening, when it was dark and his foot was caught and held fast in a switch point in the tracks, immediately south of the south line of the street, at a distance variously stated from 2 1/2 to 6 feet. While endeavoring to release his foot and making outcries, he was struck by a switch engine and train of cars, owned and operated by the defendant company, cutting off his foot and right leg below the knee. The declaration is in several counts, and alleges (a) negligent operation of the train, and by insufficient equipment in power or train brakes, as proximate causes of such injury, and further alleges (c) that the servants of the company 'willfully and wantonly drove and propelled said engine' upon the plaintiff, when they saw and 'knew his presence and danger,' or by the 'exercise of ordinary and reasonable care could and would have seen' him so caught and held in the switch. Issues were joined, and upon trial to a jury verdict was returned for the plaintiff, under instructions which submitted (in effect) the last-mentioned issue alone of wanton injury. Error is assigned for denial of instructions requested, on exceptions to instructions given, and to rulings on the admission and rejection of testimony. The matters involved in these assignments, in so far as deemed material, are specified in the opinion.

Bruce A. Campbell, for plaintiff in error.

Maurice V. Joyce, for defendant in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge (after stating the facts as above).

The questions involved in this review are grouped in the argument under three heads, and may well be so considered, without detailing the various assignments upon which they are predicated. These facts are undisputed: The plaintiff below was struck by the locomotive and train while his foot was caught and held in the switch point, in the immediate vicinity of the street crossing, but outside the boundary line of the street, at a distance not exceeding six feet. When thus caught he was attempting to cross the tracks, after dark, so that the way was obscured, and the street line, at the crossing, is unmarked by sidewalk, paving, or other means, aside from the frontage of buildings upon the street, beyond the crossing. Whether the plaintiff was actually engaged in crossing the tracks on the street, or intentionally diverged therefrom, is a question raised in the argument by way of an alleged inference of fact from the testimony. The engine was backing in charge of an engineer, but hauling a train of 31 cars, approaching at a speed of four or five miles an hour, with a switchman riding on the rear footboard, who jumped off and ran ahead on hearing outcries. Several coal cars were standing upon a track beside the switch, further obscuring the view from the engine (as the witnesses state) of the entrapped plaintiff, and when his situation was discovered the switchman rushed to the rescue, but, failing to free the foot from the switch, pulled the body from the track, to save the life of the unfortunate boy, while his foot and leg were severed under the wheels. The presence and plight of the plaintiff were not discovered by the engineer in time to avoid the catastrophe. Although outcries were made by the plaintiff and by other boys, who were in the vicinity and testified in the case, the engineer and other men on the train testify that their import was not understood; and the testimony is conflicting in reference to watchfulness and care in running the train and opportunity to discover the danger. Beyond the uncontroverted facts, no discussion of the testimony is needful or desirable upon either of the contentions for reversal, which are: (1) That the defendant was entitled to have a verdict directed of not guilty, as requested; (2) that the court erred in the instructions which were given upon the issue submitted; and (3) that rulings upon the admission and rejection of testimony were erroneous and prejudicial.

1. The alleged error in denying the motion for direction of a verdict in favor of the defendant must be considered in reference to the evidence as an entirety, within the well-recognized rule applicable to such motions, and irrespective of the theory upon which the court finally submitted the case to the jury, as considered under the second proposition. Thus presented, the test is whether it appears conclusively, as a matter of law, that the plaintiff was in the relation...