Tucker v. Duncan

• Decision Date: 01 January 1881
• Citation: 9 F. 867
• Parties: TUCKER v. DUNCAN
• Court: U.S. District Court — Southern District of Mississippi

9 F. 867

TUCKER v. DUNCAN

United States Circuit Court, S.D. Mississippi.

1881

Humphries & Sykes and Wiley P. Harris, for petitioner.

E. L Russell, Peter Hamilton, J. M. Allen and L. Brame, for defendant.

HILL D.J.

This is a complaint made by the said Tucker, in which he alleges that on the eleventh day of October, 1880, he was with his wagon drawn by one horse, crossing the Columbus branch of the Mobile & Ohio Railroad, on St. John street, in the city of Columbus, when, without any carelessness or default upon his part, but by the carelessness and improper conduct alone of the employees operating the engine and train of said receiver, upon said railroad, his wagon was run against and thrown over, by means of which he was thrown from his wagon and received sundry dangerous and severe wounds, endangering his life, greatly disfiguring him, and causing him great bodily pain, for which he claims $25,000 damages as compensation. To the complaint the defendant answers that the injuries complained of were caused by the carelessness and reckless conduct of the petitioner alone, and not by the carelessness or want of skill or misconduct upon the part of his employees, as alleged in the petition. Upon the issue thus made a large volume of evidence has been taken and submitted to the court, upon which exhaustive comment has been made by the distinguished counsel on both sides, all of which has been carefully considered, and with the sole view of arriving at a correct conclusion as to whether or not under the testimony and rules of law applicable to it, the petitioner is entitled to compensation, and if so, for what sum. The proofs show the following indisputable facts:

The point at which the accident occurred is at the crossing of St. John street over the railroad in charge of the defendant as receiver, under the appointment of the court, and in the city of Columbus; and it is a dangerous one for those passing on this street going south, from the fact that it is near the depot, and near the side track used for switching off cars and making up trains, and over which point locomotives and trains necessarily have to pass many times during the day. The danger is further increased from the fact that there is a brick warehouse situated east of the street and north of the railroad, and extending 250 feet from near the track of the road north on the street, and 240 feet east of the street; and, being some 17 feet high obstructs the view from those passing south on the street. The danger is still further increased by the narrowness of the street near the crossing, being only 15 or 16 feet wide, with a deep and wide ditch or washout on the west side. The street is also covered with gravel, which causes a noise when vehicles pass over it. The depot, side track, and switches used by the railroad are situated east of and near this crossing, and in making up trains the locomotives must necessarily pass it. The time for the departure of the evening train was 40 minutes after 3 P.M., and the practice was to commence making up the train an hour or more before the train time, and at the time of the occurrence complained of the locomotive was employed in making up the evening train, being about 3 o'clock P.M. It is also an indisputable fact that petitioner was driving a spring wagon loaded with rails and drawn by one horse, coming down St. John street, going south; that when near the crossing, and at a place where the street was too narrow to turn around, the locomotive approached the crossing, the horse became frightened and stopped for a moment, when petitioner urged him on with the purpose of passing in front of the locomotive; that the fore wheels of the wagon passed the end of the pilot of the engine, but that the hind wheels, or one of them, was caught on or struck the end of the pilot, which threw the wagon on its side. The horse being frightened sprang forward and disengaged himself from the wagon. The petitioner was thrown forward upon the street and was thereby greatly wounded, injured and disfigured, causing him great pain and suffering, and which injuries may prove permanent. There was not then, and never had been, any sign-board erected at that point warning passers of approaching trains, nor any other warnings or signals given other than the ringing of the bell or blowing of the whistle. These are all of the undisputed facts that need be stated. There are others, and upon which the questions submitted must greatly depend, about which there is more or less conflict between the witnesses of petitioner and defendant.

The conductor of the train, the engineer who was operating the engine, the brakeman who was then employed in changing the switch or throw-rail, the fireman then engaged on the locomotive and whose business it was to ring the bell, also another witness, all testify that at the time the collision took place, and before, while the locomotive was in motion, the bell was ringing. It is also in proof that soon after the accident the petitioner stated that the bell was ringing. The petitioner has introduced the testimony of a number of witnesses, stating that they were near enough to have heard the bell if it had been ringing; some speak in more positive terms that it was not rung; and others, that if it was that they did not hear it. Other witnesses state that it was the general practice to ring the bell when the engine was in motion, but that it was sometimes omitted; some witnesses stating that the omission was frequent, and others that it was not. It is also in proof that accidents have occurred at this crossing before, or were barely escaped. It was the duty of the conductor and of the engineer to see that the bell was rung, and it is presumed that the brakeman would also observe this duty; it was also the duty of the fireman to ring it. All these swear positively that it was rung.

The testimony on the other side is, with one or two exceptions of a negative character, and those stating most positively do not state reasons for remembering that they were listening, and that the bell was not ringing; and then the...