St. Louis & S.F.R. Co. v. Duke

• Decision Date: 27 November 1911
• Docket Number: 3,425.
• Citation: 192 F. 306
• Parties: ST. LOUIS & S.F.R. CO. v. DUKE.
• Court: U.S. Court of Appeals — Eighth Circuit

192 F. 306

ST. LOUIS & S.F.R. CO. v. DUKE.

No. 3,425.

United States Court of Appeals, Eighth Circuit.

November 27, 1911

B. R Davidson (W. F. Evans and E. T. Miller, on the brief), for plaintiff in error.

Sam R Chew, for defendant in error.

Before ADAMS and SMITH, Circuit Judges, and AMIDON, District Judge.

ADAMS Circuit Judge.

This action by the administratrix of the estate of Walter Duke against the railroad company suing for herself as widow and for her minor children resulted in a judgment for damages occasioned by the death of her husband while in the employ of the company as brakeman and actually engaged in the transportation of interstate commerce. To reverse this judgment error is prosecuted.

The constitutionality of the employer's liability act approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat 65 (U.S. Comp. St. Supp. 1909, p. 1171)), upon which the suit is based, is first challenged, but is not argued by counsel. They content themselves by saying the question is now under submission in the Supreme Court of the United States, and that they 'will not burden this court with a further argument. ' We take them at their word, and hold pro forma that the act is constitutional and valid.

The contention is next made that there was no substantial evidence of excessive speed or defective railroad ties which were charged in the complaint to have caused the derailment of the train which occasioned the death of plaintiff's intestate, and that, therefore, the Circuit Court erred in submitting either of those issues to the jury.

The derailment occurred at or near a station known as Bonanza, in the state of Arkansas. The train, a freight train, going in a northerly direction through Bonanza, was running on a downgrade, and two witnesses testified was going at a speed of 50 or 55 miles per hour, and another witness that it was running faster than any other train he had ever seen on that road. There was direct evidence that the railroad ties at the place of derailment were rotten or 'dotty,' as the witness called it; that by the derailment spikes were drawn from the ties, rails were spread apart and torn from the track for a distance of 50 feet, and a general destruction of the cars and roadbed ensued. On the other hand, there was evidence to the effect that the train was moving at a moderate rate of speed only, and that the ties were in good condition. Much time was spent in argument by counsel for the railroad company to demonstrate that the witnesses for plaintiff were not qualified to testify concerning the rate of speed of the train, and that the evidence of defective ties was untrustworthy, and we are asked to discredit their evidence.

Three witnesses testified on the first mentioned subject in behalf of the plaintiff. One certainly was shown to have had experience enough to warrant giving his opinion concerning the speed. While objection was made to the other two on the ground of inexperience no exception was taken to the action of the trial court in overruling it. Defendant, therefore, is now precluded from pressing that objection. Their evidence was received for what it was worth, and we think it corroborated the other evidence in a material and substantial way. One witness testified that the ties at the place of the accident were rotten, and their appearance after the accident was brought to the attention of the jury.

On the whole, we are unable to say there was no substantial evidence of a dangerous rate of speed or of a defective condition of the roadbed or ties. A jury heard the evidence, and under faultless instructions on both these issues found them in favor of plaintiff. Such being the case, we cannot disturb the finding.

A conductor on one of the trains of the defendant company while on the stand as a witness was interrogated about the times his and other trains on the defendant's road were due, according to the schedule, at Bonanza and the nearby stations at or about the time the accident in question occurred. Questions of this kind were asked with a view of showing, as stated by counsel at the time, that there was some pressing need of greater speed than usual in the operation of the train which was wrecked, in order to make its time at Cedars, a station four or five miles north of Bonanza, and clear the track for passenger trains and others which had the right of way over the freight train in question.

Defendant's objections to these interrogatories were clearly untenable and the court committed no...