West v. Chicago, B. & Q. Ry. Co.

• Decision Date: 19 April 1910
• Docket Number: 1,583.
• Citation: 179 F. 801
• Parties: WEST v. CHICAGO, B. & Q. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F. 801

WEST v. CHICAGO, B. & Q. RY. CO.

No. 1,583.

United States Court of Appeals, Seventh Circuit.

April 19, 1910

Rehearing Denied June 10, 1910.

E. J King, for plaintiff in error.

Chas V. Miles, for defendant in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge.

The action was for damages on account of the company's alleged wrongful causing of West's death. At the conclusion of the evidence the court directed a verdict for the company.

West, a freight brakeman on one of the company's trains, while passing on a stormy night from the engine back over the tops of the box cars to examine the hand brakes in the performance of his duty at the time, stepped from an ordinary box car to a furniture car, and there was struck on the back of the head by the girder of an overhead bridge and killed.

Negligence was charged in the lack of sufficient clearance and also of 'telltales' (ropes suspended from a wire across the track) to give warning of the low bridge.

Evidence is in the record tending to prove that the bottom of the girder was 19 feet 8 1/2 inches above the rails; that ordinary box cars are 12 feet high; that the furniture car in question was 14 feet 1 inch; that West was 6 feet tall in his shoes; that the company maintained this bridge as an overhead highway crossing; and that the company had a standard or usual clearance of 22 feet between track and permanent overhead structures. This was sufficient to make a prima facie case under the first charge of wrongful conduct. The ways of these great roads of commerce are maintained for the indefinite future.

To erect permanent structures in such locations and relations that employes when discharging their duties are likely to be killed indicates an almost wanton disregard of human life. Under its denial the company did not conclusively overcome the prima facie showing. Such a death trap is not to be excused except by a necessity that cannot reasonably be avoided. The bridge foreman testified that when an old bridge at this location was replaced by the present one it was the intention to raise the new bridge, but the commissioners objected because the grade of the approaches would be too steep. There was no proof that the commissioners objected to the raising of the bridge if the company would also raise the approaches, nor what the cost of filling the approaches would be. A civil engineer testified that the track was upgrade both ways from the bridge and that while the clearance could be made sufficient by lowering the track 'the grade would have to be carried out so far I should say it would be impracticable. ' Physical practicability was thus admitted; and, there being no evidence of how far the grade would have to be extended nor of the cost, the jury were not bound to accept an unsupported opinion that the change was financially impracticable. There was no proof to establish conclusively that the expense was beyond what a master of ordinary prudence would incur, first, out of regard for the safety of his employes; and, second, to save the damages that would accrue throughout the existence of the death trap in all cases where assumption of risk or contributory negligence could not successfully be used in defense.

For about six weeks before the accident the telltales were down. Six witnesses, mainly farmers residing near this highway crossing, testified that the telltales were not put up until after West was struck. The bridge crew and the section men 14 in all, testified that the telltales were restored the second day before the injury. Furthermore, records of the work done by the bridge crew and telegraph messages sent over the company's wires from the bridge boss to his superintendent telling the daily whereabouts of the crew, were introduced. These corroborated the men's testimony. Thereon counsel for the company insist that the evidence of the plaintiff was so slight in comparison with that of the company that the court was justified in directing the verdict. The records and messages were at all times in the custody of the company's men who would naturally have an interest in freeing themselves and the company from blame. And while there was no direct attempt to impeach the company's men and records, the ultimate fact was squarely contradicted by the positive and circumstantial testimony of apparently disinterested men whose reputation for truthfulness was unassailed. Although from our study of the record the company's evidence appears much the stronger, we are of the opinion that this question of fact, involving the...