Chicago, R. I. & P. Ry. Co. v. Lee

76 F. 212, 22 C.C.A. 132, 1896 U.S. App. LEXIS 2115

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 21, 1896
• Docket: No. 753
• Status: Published

Opinions

SANBORN, Circuit Judge.

On October 8, 1894, while the defendant in error, Ray Lee, was riding on a box car in one of the freight trains of the Chicago, Bock Island & Pacific Railway Company, the plaintiff in error, the train was derailed, and the defendant in error was injured. He sued the railway company for the damages resulting from this injury. The case was tried to a jury. The two principal issues presented by the pleadings were: First, whether or not the plaintiff was: a passenger of the railway company at the time of his injury; and, second, whether or not his injury was caused by the negligence of the railway company. The defendant in error produced his evidence in chief, and rested. The plaintiff in error then produced its evidence in defense, and rested. There was then no evidence in the case to the effect that the conductor or any of the trainmen in charge of the freight train when it was wrecked liad any notice or knowledge that the defendant in error was on that train. The defendant in error thereupon took the stand, and testified that about 25 or 30 minutes before the wreck the conductor of that train looked into the car where he was, said “Hello!” to him, and remarked that he would be back pretty soon. The plaintiff in error then offered to prove by one of the brakemen who was on that train that the conductor, who was killed, did not go to the box car in which the defendant in error was riding at any time while he -was in charge of the train, and that he did not know that iiie defendant in error was riding upon it. The court refused to admit this testimony, and this ruling is assigned as error.

After this ruling had been made, counsel for plaintiff in error requested the court to charge the jury that if they found from the evidence that the conductor of the train first learned that the plaintiff was on the train a few miles east of the place where the wreck occurred, the fact that the conductor did not stop and put the boy off would not create the relation of carrier and passenger between the plaintiff and the railway company, and would not make the defendant liable for the injury in question, even though that were caused by the negligent operation of the train. But the court: refused to give this instruction, or any of like character. It did charge the jury: “That if the plaintiff was on this car with the knowledge of the defendant, or any of its agents, for the purpose of being transported over its line of road, and was properly there,— and whether or not h.e was properly there is a question for you to determine under the evidence in this case, — his relations then to the railway company were those of a passenger, and it is immaterial whether or not he had a ticket, or whether or not he had at the time of the accident paid his fare.” The counsel for plaintiff in error excepted to each of these rulings. If, as the court held and charged, the testimony of the defendant in error that the conductor of the train on which he was injured knew that he was riding in a box car on that train before the wreck was competent and material evidence to prove the allegation that he was a passenger, then the testimony offered by the railway company to the effect that the conductor did not approach that car while he was in charge of that train, and did not know that the defendant in error was there, was equally competent and material, and should have been received. An impartial trial requires the admission of competent testimony upon both sides of the material issues involved. On account of the rejection of this testimony, the judgment below must he reversed, and the cause remanded, with directions to grant a new trial.