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

• Decision Date: 24 April 1907
• Docket Number: 2,360.
• Citation: 153 F. 56
• Parties: ST. LOUIS & S.F.R. CO. v. DEWEES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

153 F. 56

ST. LOUIS & S.F.R. CO. v. DEWEES. ^[1]

No. 2,360.

United States Court of Appeals, Eighth Circuit.

April 24, 1907

[Copyrighted Material Omitted]

James Black (I. P. Dana, L. F. Parker, and W. F. Evans, on the brief), for plaintiff in error.

W. R Biddle (Hubert Lardner, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

This was an action under a Kansas statute by a widow to recover damages of a railroad company for the death of her husband Charles A. Dewees, alleged to have been caused by the negligence of the company and its employes. The plaintiff obtained a verdict and judgment, and the defendant has brought the case here; its chief contention being that there was error in refusing its request for a directed verdict. In Kansas the fellow-servant rule of the common law has been abrogated as respects employes of railroad companies. Gen St. Kan. 1901, Sec. 5858.

At the time of his death, Dewees was a locomotive engineer in the service of the railroad company, and was driving the engine of a northbound passenger train called the 'Meteor.' While proceeding at a speed of 50 or 60 miles an hour, the train was wrecked in the circumstances here stated; he and the fireman being among those who lost their lives. The accident occurred at Godfrey, a small station in Kansas, at which a passing track of considerable length lies east of the main track and is connected therewith at either end by a switch. A northbound freight train had become temporarily stalled on the main track between these switches, and they had been opened to permit other trains to use the passing track while the blockade of the main track continued. The passing track was adequately constructed for the purposes for which it was designed and used, but, as was well known, it was not designed or used to carry trains running at great speed. Three trains, a north-bound passenger and two south-bound freights, made the passage in safety. The Meteor was the fourth train to approach while the blockade continued, and was wrecked in consequence of running through the open switch at the south end of the passing track, and onto that track, at the great speed before named. East of the switch was an upright switch stand 7 feet in height. At its top was a red disk 16 inches in diameter, which, when the switch was closed, could not be seen from along the track, and, when the switch was open, presented one red face to the south and the other to the north. Above the disk was a lamp with four faces, two green and two red. When the switch was closed, one green face was to the south and the other to the north, and, when the switch was open, the red faces took the places of the green ones. The accident occurred at 4:54 in the morning, when it was dark, windy, and a little foggy. Whether the lamp in the switch stand was lighted, and whether the rear brakeman of the stalled train made use of certain prescribed signals to advise the Meteor of the existing situation, as was required by the rules of the railroad company, were subjects in respect of which the evidence was quite conflicting; so, for the present purposes, it must be assumed that the lamp was not lighted, that the prescribed signals were not given by the brakeman, and that this negligence was a proximate cause of the accident. We turn, therefore, to that phase of the case which relates to the conduct of Dewees.

Among the rules prescribed by the railroad company for the operation of its trains, with which Dewees was familiar and of which he carried a copy, were these:

'General Notice. * * * Obedience to the rules is essential to the safety of passengers and employes, and to the protection of property. * * * '

'(27) A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal, and the fact reported to the trainmaster.'

'(106) In all cases of doubt or uncertainty the safe course must be taken and no risks run.'

'(267) Conductors and enginemen are cautioned against reckless running. They must run steadily and uniformly, adhering as closely to time as due regard for safety permits.'

'(358) They (the enginemen) must keep a careful lookout on the track for signals and obstructions; look back frequently and know that their train has not parted, obey all signals, even if considered unnecessary; stop and inquire respecting signals not understood. * * *

'(359) When approaching switches the engineer must know that they are in proper position. * * * '

'(412) The company does not require or expect its employes to incur any risk, from which, by the exercise of their judgment and by personal care, they can protect themselves, but enjoins upon them and demands that they shall take time and use the means necessary to, in all cases, do their duty in safety.'

The existence and location of the station, switch, and switch stand, the character and meaning of the signals usually displayed at the switch stand, and the proper use of the passing track, were well known to all experienced engineers on that part of the road. This was Dewees' first trip on the Meteor, but he was an experienced engineer, had driven engines over that part of the road almost daily for eight or nine years, was perfectly familiar with it, and was accustomed to determining his locality by familiar objects along the road, and by its grades, curves, and other features. As he approached the station from the south, he passed different fixed objects in plain view from his side of the engine, among them being the whistling sign one mile from the station and 4,100 feet from the switch. He heeded this sign by sounding the whistle for the station, and 3,000 feet from the switch he passed from a downgrade of 6 inches to an upgrade of 9 inches to every 100 feet, and from a straight line to a one degree curve to the left. The engine was a good one, and had a strong electric headlight which shone plainly upon all objects along the road before they were reached, and lighted up the switch stand and its surroundings so as to bring them within his range of vision when they were 1,200 feet away. The engine and cars were equipped with air brakes which gave him such control over the train that, by an emergency application of the air, it could be brought to a full stop in 1,000 feet, and, by a service application, could be brought to a speed of six miles an hour in 1,200 feet, although it could pass through the switch and over the passing track in entire safety at double or treble that speed. The switch was open, and therefore not in proper position for the train to proceed at great speed. The lamp in the switch stand did not show green, the signal for a closed switch. If lighted, it showed red, the signal for an open switch; and, if not lighted, there was an absence of a signal at a place where a signal was usually shown, which, as properly conceded in the instructions requested by the plaintiff, 'was a warning.' And whether or not the lamp was lighted, the red disk, 16 inches in diameter, was so turned as to show that the switch was open. While, as before said, it was dark, windy, and a little foggy, the evidence, including that for the plaintiff respecting the distances at which different lights and objects were seen at the time, makes it plain that, with the strong electric headlight on his engine, Dewees could have observed the conditions at the switch stand at any time after he came within 1,200 feet thereof. But, if the weather had prevented such observation, it would still be beyond question that he knew the relative location of the whistling sign, the switch, and the station, knew he had passed the whistling sign and at what speed he was running, did not know whether the switch was in proper position, and yet proceeded all the way to it at a speed of 50 or 60 miles an hour with the disastrous results before stated. He made no application of the air at his command, and his conduct was not induced by any false or misleading signals, for there was none. There was no evidence that any of the rules before set forth, or the use of the signal lamp at the switch, had been abandoned or fallen into disuse.

It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it should be submitted to and determined by them, but it is equally true that when the evidence and the inferences to be reasonably drawn from it are undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper. Southern Pacific Company v. Pool, 160 U.S. 438, 16 Sup.Ct. 338, 40 L.Ed. 485; Patton v. Texas &amp Pacific Railway Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Chicago Great Western Ry. Co. v. Roddy, 65 C.C.A. 470, 131 F. 712. In our opinion this was such a case. The evidence reasonably permitted of either of two conclusions, but none other: One, that Dewees took proper observations, learned that the switch was open, and took chances on being able to go safely through the same and over the passing track at great speed; the other, that, knowing he was approaching the switch, and not knowing whether it was closed or open, he took chances on its being in proper position. In either event he was culpably negligent. It is conceded that negligence is necessarily deducible from the first conclusion, but that it is thus deducible from the second is questioned, and this upon the theory that his conduct must be...