Chicago, Rock Island, and Pacific Railroad Company v. Houston

ERROR to the Circuit Court of the United States for the Western District of Missouri.

This was an action against the Chicago, Rock Island, and Pacific Railroad Company, brought under a statute of Missouri, which subjects a corporation to a penalty of $5,000 where death is caused by an injury resulting from 'the negligence, unskilfulness, or criminal intent' of any of its officers, agents, servants, or employes, whilst running, conducting, or managing a locomotive, car, or train of cars. In this case, the deceased was the wife of the plaintiff; her death was caused by injuries inflicted by the defendant's locomotive whilst the train was passing through the village of Cameron in that State. The defendant had two tracks, one main and the other a side track, which extended through a considerable portion of the village, and passed south of Second Street. The tracks were separated from each other by only a few feet. The house at which the deceased resided was north of Second Street and east of Harris Street, which the tracks crossed. South of the two tracks, and about ninety feet east from Harris Street, was situated a building belonging to the company, called the section-house, near which was a well of water. The building and well were on the company's right of way. The train was due, on the evening when the accident occurred, at half-past six, and it entered the village from the west. At that time a gravel-train ad been switched on the side track east of Harris Street, between the section-house and the depot. Freight-cars were also standing on the side track west of, but near, Harris Street. There was a plank-crossing over the railway at Harris Street. When cars were not standing on the tracks there was nothing to prevent one passing in a direct or nearly direct line from the house of the deceased to the section-house. Persons, in going to the well from that house, sometimes passed the road at the public crossing, and sometimes on the right of way of the company east of Harris Street. The evidence disclosed by the record relating to the accident only shows that at about half-past six in the evening of the 13th of March, 1872, the deceased took a pail upon her arm and left her house, and, it is supposed, started for the well near the section-house. She was seen by her daughter as she left, and by the engineer only a few seconds before she was struck by the locomotive. It does not appear that she was seen by any other person after leaving the house before she was injured. When discovered by the engineer, the locomotive was within four feet of her. She was then on the main track of the railway, about ninety feet east of Harris Street, and was apparently passing from the track south. She was struck by the extreme end of the beam of timber running across the engine, known as the bumper, and was thrown into a ditch about ten feet from the section-house. The engineer testified, that when he discovered her it was impossible to stop the train so as to avoid striking her. She died within an hour after receiving the injury.

It appears from the evidence, also, that the railway was in plain view from the house of the deceased, and that a train approaching from the west could be seen from it, and from any point between the Harris Street crossing and the section-house for a distance of three-quarters of a mile. At the time of the accident there was a bright moonlight; and the headlight of the engine was burning, and the movement of the train created a loud noise. There was some conflict of evidence as to the rate of speed at which the train was running at the time, and whether its bell was rung and its whistle sounded. As to the other facts stated, the evidence was all one way.

There was a verdict and judgment for the plaintiff, whereupon the company brought the case here. The substance of the charge of the court below to the jury is stated in the opinion of the court.

Mr. Thomas F. Withrow for the plaintiff in error.

The court below erred in charging the jury upon assumed facts of which no evidence was offered. Michigan Bank v. Eldred, 9 Wall. 544; United States v. Breiting, 20 How. 252; Goodman v. Simonds, id. 343; Chandler v. Von Roeder et al., 24 id. 224; Improvement Company v. Munson, 14 Wall. 442, Milwaukee & St. Paul Railway Co. v. Arms et al., 91 U.S. 489; Artz v. Chicago, Rock Island, & Pacific Railroad Co., 34 Iowa, 154.

Under the evidence, the court should have instructed the jury to find for the defendant. The deceased was a trespasser, and the company only liable for wilful negligence. Harlan v. St. Louis, Kansas City, & Northern Railroad Co., 64 Mo. 480; Philadelphia & Reading Railroad Co. v. Hummell, 44 Pa. St. 375; Finlayson v. Railroad Company, 1 Dill. 579; Illinois Central Railroad Co. v. Godfrey, 71 Ill. 501.

Where it is manifest that, upon the evidence, the court should set aside a verdict against a party, it is its duty to charge the jury not to return such a verdict. Pleasants v. Fant, 22 Wall. 116; Improvement Company v. Munson, supra; Wilds v. Hudson River Railroad Co., 24 N. Y. 430; Lake Shore & Michigan Southern Railroad Co. v. Miller, 25 Mich. 274.

The deceased did not exercise that degree of care and diligence required of her. Wild v. Hudson River Railroad Co., 29 N. Y. 315; Pennsylvania Railroad Co. v. Beale, 73 Pa. St. 504; North Pennsylvania Railroad Co. v. Heileman, 49 id. 60; Butterfield v. Western Railway Corporation, 10 Allen (Mass.), 532; Wheelock v. Boston & Albany Railroad Co., 105 Mass. 203; Gaynor v. Old Colony & Newport Railroad Co., 100 id. 208; Burns v. Boston & Lowell Railroad Co., 101 id. 50; Lucas, Adm'r, v. Taunton & New Bedford Railroad Co., 6 Gray (Mass.), 64; Wild v. Hudson River Railroad Co., supra; Ernst v. Hudson River Railroad Co., 39 N. Y. 61; Wilcox v. Rome & Watertown Railroad Co., id. 358; Davis v. New York Central & Hudson River Railroad Co., 47 id. 400; Wilds v. Hudson River Railroad Co., supra; Gorton v. Erie Railway Co., 45 N. Y. 660; Steves v. Oswego & Syracuse Railroad Co., 18 id. 422; Sheffield v. Rochester & Syracuse Railroad Co., 21 Barb. (N. Y.) 339; Gonzales v. New York & Harlem Railroad Co., 38 N. Y. 440; Morris & Essex Railroad Co. v. Haslan et al., 33 N. J. L. 149; Telfer v. Northern Railroad Co., 30 id. 188; Pennoyer v. Central Railroad Co., 25 id. 558; Toledo & Wabash Railroad Co. v. Shuckman, Adm'r, 50 Ind. 42; Pittsburgh, Fort Wayne, & Chicago Railroad Co. v. Vining, 27 id. 513; Lafayette & Indianapolis Railroad Co. v. Huffman, 28 id. 287; Toledo & Wabash Railroad Co. v. Goddard, 25 id. 185; Chicago & Rock Island Railroad Co. v. Still, 19 Ill. 500; Galena & Chicago Union Railroad Co. v. Dill, 22 id. 265; Chicago & Alton Railroad Co. v. Gretzner, 46 id. 74; Chicago & Northwestern Railway Co. v. Sweeney, 52 id. 325.

Mr. Jefferson Chandler, contra.

The charge given the jury covers every aspect of the case as presented by the evidence.

As to the negligence of the defendant. Railroad Company v. Whitton, 13 Wall. 270; Maginnis v. Railroad Company, 52 N. Y. 215; Philadelphia Railroad Co. v. Hagan et al., 47 Pa. St. 244; Chicago, Burlington, & Quincy Railroad Co. v. Payne, 59 Ill. 534; Artz v. Chicago & Rock Island Railroad Co., 34 Iowa, 154; Railroad Company v. Stout, 17 Wall. 657; Baltimore & Ohio Railroad Co. v. Trainor, 33 Md. 542; Same v. Boteler, 38 id. 568; O'Mara v. Railroad Company, 38 N. Y. 445; Renwick v. New York Central Railroad Co., 36 id. 132; Beisiegel v. Same, 34 id. 622; Richardson v. Same, 45 id. 846; White v. Phillips, 15 C. B. N. S. 245; State v. Manchester & Lawrence Railroad, 52 N. H. 528; Brown v. The Hannibal & St. Joseph Railroad Co., 50 Mo. 461.

As to contributory negligence. Railroad Company v. Whitton, supra; Railroad Company v. Stout, supra; Smith v. Union Railway Co., 61 Mo. 588; Kennayde v. Pacific Railroad Co., 45 id. 255; Burham v. St. Louis & P. M. Railroad Co., 56 id. 338; Tabor v. Missouri Valley Railroad Co., 46 id. 353; Brown v. The Hannibal & St. Joseph Railroad Co., 50 id. 461; Walsh v. Mississippi Valley Transportation Co., 52 id. 434; Artz v. Chicago, Rock Island, & Pacific Railroad Co., supra; Baltimore & Ohio Railroad Co. v. Trainor, supra; Same v. Fitzpatrick, 35 Md. 32; Railroad Company v. State, 36 id. 366; Brown v. Lynn, 31 Pa. St. 510; Railroad Company v. Chendworth, 52 id. 382; Gray v. Scott, 66 id. 345; Butler v. Milwaukee & St. Paul Railroad Co., 28 Wis. 487; The Lafayette & Indianapolis Railroad Co. v. Adams, 26 Ind. 76; The Bellefontaine Railroad Co. v. Hunter, 33 id. 365; Kerwhacker v. The Cleveland, Columbus, & Cincinnati Railroad Co., 3 Ohio St. 172; Same v. Terry, 8 id. 570; Macon & Western Railroad Co. v. Davis, 18 Ga. 679; Central Railroad and Banking Co. v. Davis, 19 id. 437; Daley v. Norwich & Worcester Railroad Co., 26 Conn. 591; Trow v. The Vermont Central Railroad Co., 24 Vt. 487; Bridge v. The Grand Junction Railway Co., 3 M. & W. 244; Lane v. Atlantic Works, 107 Mass. 104; Britton v. Inhabitants, &c., id. 347.

Mr. JUSTICE FIELD, after stating the case, delivered the opinion of the court.