St. Louis S. F. Ry. Co. v. Bennett

• Decision Date: 02 September 1895
• Docket Number: 581.
• Citation: 69 F. 525
• Parties: ST. LOUIS & S.F. RY. CO. et al. v. BENNETT.
• Court: U.S. Court of Appeals — Eighth Circuit

69 F. 525

ST. LOUIS & S.F. RY. CO. et al. v. BENNETT.

No. 581.

United States Court of Appeals, Eighth Circuit.

September 2, 1895

This was an action by Margaret L. Bennett, administratrix of the estate of W. W. Bennett, the defendant in error, to recover damages from the St. Louis & San Francisco Railway Company and its receivers, the plaintiffs in error, for the death of the intestate, which she alleged was caused by the negligence of the company in leaving a switch open, and in running a freight train at an excessive rate of speed. The company denied negligence, and alleged that the injuries were caused by the negligence of the intestate. There was no dispute about the essential facts of the case. The scene of the accident was a spur track of the railway company, which extended from its main track at Van Buren, in the state of Arkansas, between two long lumber sheds that belonged to the Long-Bell Lumber Company. The platforms of these lumber sheds were about 4 feet high, and the space between them, in which the cars ran upon this spur track, was about 16 feet side. It was about 4 o'clock in the afternoon of a November day in 1893. A switch engine, with its crew, had entered the spur from the main track for the purpose of moving cars on the former, and the switch had been left open. There were about 14 freight cars upon the spur track, and between the 2 sheds there was an opening between 2 of these cars, which had been made before the switch engine came upon the track. This space was about 20 feet wide. In it the employes of the lumber company had placed a tramway, one end of which rested upon timbers under the platform upon one side of the track, and the other upon the platform upon the other side. When the railroad company was not using the spur track, this tramway was used by the lumber company to enable its employes to transfer lumber across the track from one of its sheds to the other. Whenever a switch engine came upon this spur track to move cars, it had been the custom for those employes of the lumber company who happened to be nearest to the tramway to immediately jump down upon the railroad track, in the space between the cars, and push the tramway back under one of the platforms. At the time of this accident there were some box cars between the engine and the space where the tramway was and about a dozen of them beyond that space. None of the officers or employes of the railroad company knew that the lumber company or its employes had been using this tramway across its track, or had any notice or knowledge that the tramway, or any of the employes of the lumber company, were across or upon its track; and the employes of the railroad company who operated the engines on that day could not have seen them, in this space between the cars, from any place they had reached or passed before the accident. The deceased was an employe of the lumber company. When the switch engine came in upon the spur track, he and five other employes of that company jumped down upon the track between the cars and began to push the tramway back under the platform of the shed. From this hole between the lumber sheds and the platforms they could not see a train or engine approaching on the railroad tracks nor could those approaching upon the tracks see them. They gave no notice to the employes of the railroad company that they were about to place themselves in this dangerous situation, and they stationed no one without, where he could see coming trains to warn them of their approach. While they were in this dangerous situation a freight train came along the main track at a dangerous rate of speed, ran into the open switch, drove the switch engine and cars in upon the spur track, and the deceased and three of his colaborers were caught between the cars and killed. Upon this state of facts the court below refused to instruct the jury that the deceased was guilty of contributory negligence, refused to submit to the jury the question whether or not he was guilty of contributory negligence, and positively instructed them that if the deceased was killed by a collision that was caused by the negligence of the employes of the railroad company in running its engines and cars, or in leaving the switch open, the defendant in error was entitled to a verdict, and that it was no defense for the railroad company that its employes could not see the deceased and his colaborers, and did not know where they were when the accident occurred. There was a verdict and judgment against the company which this writ of error was brought to review.

B. R Davidson (Edward D. Kenna, on the brief), for plaintiffs in error.

Oscar L. Miles (U. M. Rose, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the facts as above, .

The only duty which a railroad company owes to those who, without its knowledge or consent, enter upon its tracks, not at a crossing or other like public place, is not wantonly and unnecessarily to inflict injury upon them after its employes have discovered them. It owes them no duty to keep a lookout for them before they are discovered, because they are unlawfully upon the tracks, and the railroad company is not required to watch for violations of the law. Railroad Co v. Howe, 3 C.C.A. 121, 52 F. 362, 369; Railway Co v. Tartt, 12 C.C.A. 618, 64 F. 823; Railroad Co. v. Cook, 13 C.C.A. 364, 66 Fed 115; Denman v. Railroad Co., 26 Minn. 357, 4 N.W. 605; Railway Co. v. Monday, 49 Ark. 257, 261, 4 S.W. 782; Sibley v. Ratliffe, 50 Ark. 477, 483, 8 S.W. 686; O'Keefe v. Railroad Co., 32 Iowa, 467; Yarnall v. Railway Co., 75 Mo. 575; Button v. Railroad Co., 18 N.Y. 248, 259; Nicholson v. Railway Co., 41 N.Y. 525. If it were conceded that where a railroad company has given to others an express license to use its tracks for a certain purpose, and where it has invited them to make use of the tracks for such a purpose, and has thus given them an implied license so to do, it owes to these licensees the additional duty to use ordinary care to look out for them upon its tracks, and, if discovered, to warn them of the approach of its engines and trains as they pass, yet in the absence of any such express license to use, or any invitation, and of any notice or knowledge on the part of the railroad company that strangers have used or are about to use its tracks for their own purpose, the fact that they had been so used without objection would constitute no license, express or implied, and would impose upon the company no duty of active vigilance towards those who so used them. Under such circumstances the railroad company could have no reason to anticipate danger to those who were occupying its tracks without its knowledge, and it would owe them no other...