St. Louis, I.M. & S. Ry. Co. v. Needham, 596.

• Citation: 69 F. 823
• Decision Date: 02 September 1895
• Docket Number: 596.
• Parties: ST. LOUIS, I.M. & S. RY. CO. v. NEEDHAM et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

69 F. 823

ST. LOUIS, I.M. & S. RY. CO. v. NEEDHAM et al.

No. 596.

United States Court of Appeals, Eighth Circuit.

September 2, 1895

Geo. E Dodge and B. S. Johnson filed brief for plaintiff in error.

J. C Marshall, C. T. Coffman, and James P. Clarke filed brief for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

On a dark night in December, 1889, at Alexander, in the state of Arkansas, a train of cars upon the railroad of the St. Louis Iron Mountain & Southern Railway Company, the plaintiff in error, ran upon a spur track through an open switch; and Dan L. Needham, who was in the service of the railroad company as the fireman on this train, was killed. The switch had been left open by the carelessness of some of his fellow servants on a preceding train, and in Railway Co. v. Needham, 11 C.C.A. 56, 63 F. 107, we held that his widow, Mrs. D. L Needham, the defendant in error, could not recover of the railroad company for the carelessness of these fellow servants. The case has been retried, and a verdict and judgment rendered against the company on the ground that it was negligent because it failed to maintain a target upon the switch which opened and closed the spur track upon which this train ran.

It is assigned as error that the court below refused to instruct the jury to return a verdict for the defendant on the ground that the plaintiff had failed to show that the proximate cause of the death of Needham was the failure of the company to maintain the target upon the switch. If it was the duty of the railroad company to maintain a target upon this switch, and its negligence in the discharge of this duty directly contributed to the injury of the deceased, it is no defense for the company that the negligence of his fellow servants also contributed to the fatal result. One is liable for an injury caused by the concurring negligence of himself and another, to the same extent as for one caused entirely by his own negligence. Railway Co. v. Chambers, 68 F. 148, 153, and cases there cited. There was evidence in this case that it was the custom of the railway company to maintain targets upon the switches along its road for the purpose of notifying the engineers who were driving the engines over it whether the various switches were open or closed. It was the custom, and undoubtedly the duty, of the engineers, to look for these targets as they approached the various switches along the road. The engineer of the train which met with this accident testified that if there had been a target upon this switch he could have seen it, and would have been notified that the switch was open, more than 120 feet before he could learn that fact by a view of the rails themselves. He also testified that if he had received a longer notice that the switch was open, so that his engine and train would inevitably run upon the spur track, he and the other members of the crew upon the train would have had a better opportunity to decrease its speed, and to get safely from it, before the engine rushed off the end of the spur. In our opinion, there was ample evidence here to warrant the jury in the inference that the absence of the target from the switch contributed to the fatal accident to the deceased. As the case was, only the engine, tender, and the forward trucks of the car next the engine went off the end of the spur. It may well have been that, if the engineer had received notice of the open switch when he was 120 feet more distant from it, he and his fellow servants on the train could have so slackened its speed that Needham might have escaped without injury. The very purpose of the target is to give this notice. To hold as a matter of law, that the absence of the target could not have contributed to the injury, is to hold that its presence was useless. What is the proximate cause of an injury, and what directly contributed to an injury, are ordinarily questions of fact, for the jury, and the evidence in this case brings it completely within this rule. Insurance Co. v. Melick, 12 C.C.A. 544, 546, 65 F. 178; Railway Co. v. Callaghan, 6 C.C.A. 205, 208, 56 F. 988; Railway Co. v. Kellogg, 94 U.S. 469, 474, 476.

The second error assigned is that the...