White v. Chicago G.W.R. Co.

• Decision Date: 15 October 1917
• Docket Number: 4835.
• Parties: WHITE v. CHICAGO G.W.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F. 427

WHITE v. CHICAGO G.W.R. CO.

No. 4835.

United States Court of Appeals, Eighth Circuit.

October 15, 1917

C. O Holly and John McLennan, both of Des Moines, Iowa, for plaintiff in error.

Fred. P. Carr, George H. Carr, and Donald Evans, all of Des Moines Iowa, for defendant in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

SMITH Circuit Judge.

The Des Moines Union Railway Company is a terminal and railroad company at Des Moines, Iowa. It has two main lines extending east and west near the center of the tier of blocks lying south of Cherry street crossing Eighth street. South of these tracks it has a switch which at its west end leaves the main tracks and extends east to the west line of Eighth street. Eighth street extends north and south across the two main line tracks referred to and east of the end of the switch mentioned. Eighth street is, and was at all times here material, curbed, and paved in the driveway, and had sidewalks and parkings along the sides. East and beyond the end of the switch referred to and of the west sidewalks on such street, and standing partly on the parking and partly on the paving, was a flagman's shanty used by an agent of the Des Moines Union for shelter while he was engaged in flagging trains passing over the two main tracks referred to and in warning the public who were about to use the highway crossing of approaching trains. It appears from the testimony that the Des Moines Union had granted a long-time lease of the switch in question to the defendant, the Chicago Great Western Railroad Company, for use as a wagon track. Prior to the happening of any of the matters here complained of the defendant had the care and control of the switch track. As the switch track did not cross or encroach upon Eighth street, it is quite clear that the flagman had no duty whatever with reference to that track.

The defendant had, in common with various other railroad companies, the right to use the two main tracks in question for its passenger trains. The Des Moines Union was engaged in operating, caring for, and controlling the two passenger tracks, while the defendant under its lease was operating caring for, and controlling the switch. The plaintiff was employed as a night watchman at a building on Eighth street, which he alleged was the Jaeger Manufacturing Company's. The Jaeger Manufacturing Company was engaged in business on the southeast corner of Eighth street and the alley running east and west through the center of the tier of blocks in question and directly across Eighth street from the shanty referred to. On the evening of April 19, 1914, he was invited by the flagman at the crossing in question, who was in the employ of the Des Moines Union, which erected the shanty, to step into it for a social visit. While he was thus in the shanty, the defendant shunted some freight cars east on the switch in question, and they passed beyond the end of the switch across the sidewalk and the parking, struck the shanty, and inflicted injuries upon the plaintiff's person.

This suit was brought to recover for those personal injuries. The case was tried to a jury, and the court directed a verdict for the defendant, the Chicago Great Western Railroad Company, and to a judgment rendered on a verdict so returned the original plaintiff sued out this writ of error.

The instruction was based upon the theory that the defendant while in the shanty was a trespasser and the company owed him no duty. The evidence shows that the accident took place in a public highway, but it does not appear just what the title of the public was to the highway. In Iowa, in addition to the forms in which such title can ordinarily be acquired, the execution, acknowledging, and recording of a plat of land in a city is equivalent to a deed in fee simple of all lands set apart for streets. Section 917, Code of 1897. Whether the public had a perpetual right of use of the street, or a title in fee simple, is, however, not very material.

So far as the main lines were concerned, the Des Moines Union had a right to lay them across the street without the consent of the city or of any property owner. Gates v. C., St. P. &amp K.C. Ry. Co., 82 Iowa, 518, 48 N.W. 1040; Morgan v. Des Moines Union Ry. Co., 113 Iowa, 561, 85 N.W. 902. As the Des Moines Union did not own, so far as shown by the record, the property across the street...