Wabash, St. L. & P.R. Co. v. Central Trust Co.

• Decision Date: 09 May 1885
• Parties: WABASH, ST. L. & P.R. CO. v. CENTRAL TRUST CO. OF NEW YORK.
• Court: United States Circuit Court, District of Indiana

23 F. 738

WABASH, ST. L. & P.R. CO. v. CENTRAL TRUST CO. OF NEW YORK.

United States Circuit Court, D. Indiana.

May 9, 1885

Jacob B. Julian, for petitioner.

Chas B. Stuart, for receivers.

WOODS J.

The master has found against the petitioner on the ground of contributory negligence, and the question presented is whether or not the finding is supported by the evidence. The entire evidence upon the point, and the master's view of it, are set forth in the report as follows:

Elijah Ingram testified as follows: 'I am petitioner's son and had charge of team when mare was injured. It was between 10 and 12 o'clock A.M. Was hauling gravel for Hanway &amp Cooper. I was unloading gravel on the north side of the tracks, on East street. A Wabash train came backing down. I was not looking for a train. I saw it across the street, and tried to get horses away, and could not. There was a man walking along at rear of train, and I told him to stop it and he gave the signal, but it did not stop until the rear car struck the mare. I did not hear bell nor whistle. ' Cross-examined. 'I had been hauling there 3 or 4 days or a week, and knew trains were running on that track. I did not want to drive onto the track, because it was dangerous; but was told to drive in there by the man who was there in charge for Hanway & Cooper. My team was facing west, and there was no time for me to get them out of the way after I saw the train coming. I knew I would be in that fix if train came. The brakeman who was walking along by the rear end of the train was walking as fast as the train was coming. From where I was the only way I could get out was to back out. I could not see the engine from where I was. The rear end of train passed the length of a box car pass me before it stopped. Nobody told me to get out of the way. None of the wagon wheels were on the track. I was dumping gravel near the north rail of the north track, on the west side of East street. The mare that was injured was probably on the track with her fore feet. I could not drive ahead, because there was a deep gutter. I could not turn around, because the flag-man's station was in the way; and I could not drive ahead or back the team, for the wagon was partly unloaded, and the planks, which had been turned to let the gravel out, prevented my moving the wagon in the condition it was.'

Martin Higgins, for defense, testified as follows: 'Was working there for Hanway & Cooper, contractors; it was my business to count loads, give tickets to teamsters, and direct them where to dump gravel. I gave this boy a ticket and told him to unload and get out; that a train might be in soon. I crossed over to the south side of the tracks to the office and sat down. Presently I heard somebody holler. I looked, and ran over and helped the boy get wagon out. There was nothing to prevent the boy from getting out by driving across the track. He stood holding the horses and made no effort to get them out. The train was moving very slow. He had plenty of time to drive over the track. I do not know who yelled to the boy. The boy spoke to me and said it was my fault in ordering him to drive on. I said, 'No; you ought to have unloaded and got out.' I told him to go home. The planks of the wagon-bed would not have prevented the team from pulling out. ' Cross-examined. 'East street is 60 feet wide. When I heard the noise I looked up and saw the cars. They had not got to the east side of the street yet. I looked at the cars and then at the boy. Did not hear the boy tell brakeman to stop train. I heard shouting, and think it was the flag-man or some one on the train. I did not hear bell or whistle. I expect likely I would have heard signal if it had been given. The boy was holding horses, and they were turned south. Neither horse was on track. May be they had fore feet on track. I was there when the boy came, and it was my duty to direct them where the dumping was to be done. I told the boy to drive in there, and he put gravel where I told him to put it. The boy could have driven across the track with empty wagon. Do not know how it would be if loaded or with 1/2 load on. If he first saw cars 30 feet away he could not have got out. He was about 5 or 6 feet east of west gutter of East street. From time I saw him holding horses, he could have driven out. Do not know width of west gutter. The horses stood quartering on track; one horse a little bit on track. I do not know whether boy went right to work unloading when I gave him ticket. Boy, from where he was, could see up track as far as I could. ' Re-examined. 'If boy had kept a lookout and unloaded, he could have got out. I do not know whether the load was dumped or not. The boy could see 100 feet east of East street from where he stood.'

(By request of parties the master accompanied counsel to the place where the animal was injured, and discovered that, from where the boy stood with his team, he could see up the track in the...