Wineinger v. Union Pac. R. Co.

• Decision Date: 04 October 1921
• Docket Number: 5540.
• Citation: 276 F. 65
• Parties: WINEINGER v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 65

WINEINGER v. UNION PAC. R. CO.

No. 5540.

United States Court of Appeals, Eighth Circuit.

October 4, 1921

Rehearing Denied December 19, 1921.

William S. Hogsett and Murat Boyle, both of Kansas City, Mo., for plaintiff in error.

N. H Loomis, Edson Rich, Charles A. Magaw, and Thomas W. Bockes all of Omaha, Neb., for defendant in error.

Before CARLAND and STONE, Circuit Judges, and MUNGER, District Judge.

CARLAND Circuit Judge.

Action for the death of Leo A. Duke caused by the alleged negligence of the railroad company. A verdict was directed in favor of the company, and the administratrix of the estate of Duke assigns this ruling as error. The plaintiff at the trial introduced evidence showing and tending to show the following facts: Duke at the time of his death on April 9, 1917, was a private soldier in Company D, Fourth Nebraska Infantry. Prior to the above date the United States had declared war against the Imperial Government of Germany and had called the Fourth Nebraska Infantry into the military service of the United States. Through correspondence between the War Department and the railroad company, the latter was requested by the former to designate the points and bridges on the line of its railroad which ought to be guarded. The railroad company pursuant to said request, designated the railroad bridge located about one-half mile east of Waterloo, Neb. Whereupon Company D aforesaid was assigned to guard said bridge, and Duke as a member of said company on the date mentioned was on duty aiding in the performance of the duty with which said company had been charged. The railroad company knew on the date above mentioned that there were soldiers stationed at and guarding the bridge in question and the places on the bridge where they were stationed. The bridge was about 600 feet long. The railroad company operated over the bridge a double-track railroad extending in a general east and west direction, east-bound trains traveling on the south track, and west-bound trains on the north track. The camp of the soldiers was at the east end of the bridge. At night there were tow men at each end of the bridge and two underneath the center doing guard duty. It was necessary for the men stationed at the west end of the bridge to cross the bridge in going on or off duty.

On the morning of the day above mentioned, Duke and one Murphy were on duty guarding the west end of the bridge, having gone on duty at 12 midnight, and would go off duty at 6 o'clock a.m. About 5 o'clock a.m. Duke was given permission by his superior officer to cross the bridge to the east end to get a drink of water. It was necessary for him to cross the bridge to obtain the water. Duke started to cross the bridge on the north or left-hand track. In crossing the bridge he was obliged to walk on the ties between the rails. There was no place to walk between the two tracks as the ties under each track did not meet. The ties extended from one to one and one-half feet outside the rail. The only way to get from one track to the other was to step across the space between the ties, which was about three feet. Soon after Duke started to cross the bridge, a fast freight train consisting of 50 or 60 cars approached the bridge from the west, east bound on the north or left-hand track. Trains usually approached and crossed the bridge at from 35 to 40 miles per hour, the exact speed of the train in question not being shown. All of the witnesses testified that they did not hear any whistle sounded or bell rung as the train approached the bridge. One witness testified that the train whistled in the town of Waterloo. It is conceded that this train struck Duke and killed him. Shortly after the train passed, deceased was found underneath the north track about 75 yards west of the east end of the bridge. Duke was struck by the train from the rear, thrown against the girder at the north side of the bridge, and from there his body fell to the ground beneath. At the time of the accident day was just breaking, and while the atmosphere was 'kind of hazy' or foggy from the river, one could see 'clear across the bridge.' The double tracks as they left the west...