Myers v. Chicago, St. P., M. & O. Ry. Co.

95 F. 406, 37 C.C.A. 137, 1899 U.S. App. LEXIS 2470

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 29, 1899
• Docket: No. 1,092
• Status: Published

Opinions

THAYER, Circuit Judge.

In this case the Chicago, St. Paul, Minneapolis & Omaha Railway Company, the defendant in error, was charged with culpable negligence in maintaining an overhead bridge across its tracks at a street crossing, which was too low, as it is claimed, to permit brakemen, when on the top of freight, cars, to pass thereunder with ordinary safety. The bridge to which this charge relates was located in the city of Hudson, Wis., and the plaintiff’s husband, Edward Myers, who was a brakeman in the service of the defendant company, was knocked off from the top of one of its cars while he was passing under the bridge in the discharge of his customary duties, on a moving freight train, and was instantly killed. The accident occurred about noon on February 14, 1896. The trial court directed a verdict for the defendant company at the close of all the evidence, and the sole question for consideration is whether such instruction was properly given.

The evidence in the record shows that, at the place in the city of Hudson where the accident occurred, the defendant’s track is laid for some distance in a cut, and that the track where thus laid is spanned by three overhead wooden bridges, one being at the crossing of Eighth street, one at the crossing of Seventh street, and one at the crossing of Third street. The distance between the Eighth and Seventh street bridges was about 442 feet, and between the Seventh and Third street bridges about 1,171 feet. The track slopés from the east to the west, the direction in which the train was moving when the accident occurred, the descent being at the rate of about 53 feet per mile, which appears to have been the lowest feasible grade, considering the character of the country. The deceased passed safely under the first, or Eighth street, bridge, but was knocked off by the middle, or Seventh street, bridge. The bottom of the Eighth street bridge was about 20 feet above the top of the rail, while the bridges at Seventh and Third streets were somewhat lower, the bottoms thereof being about 18 feet and 1 inch higher than the top of the rail. The several bridges in question were built by the railroad company at the height prescribed by the proper city authorities of the city of Hudson, and, if they had been built higher, they would have impaired the use of the streets to some extent by making the approaches to the bridges inconveniently steep. For that reason the several bridges were built at the height last indicated. The testimony showed without contradiction that the deceased had passed under these bridges as a brakeman altogether about 50 times, and possibly more, shortly before the accident occurred, and that he had also been warned before the accident that the bridges were not of sufficient height — that is to say, the Seventh and Third street bridges —to permit a man to ride thereunder while standing fully upright on the top of the highest freight cars which sometimes passed over the defendant’s road. Whiplashes, or telltales, were also suspended over the track at proper points before reaching the several bridges,— that is to say, east of Eighth street and intermediate the bridges,— which were in good condition when the accident occurred.

On this stale of facts, which is all that the testimony discloses, we think that there was no substantial evidence to convict the defendant company of culpable negligence. It appears to have had good and sufficient reasons for constructing its bridges at the height above the track at which they were built, and for not giving them a greater elevation. It gave its employés, including the deceased, verbal notice that they could not ride under these bridges standing fully upright on all freight cars which might be in its trains, and, lest this warning' might at times be unheeded, it suspended whiplashes above its track at proper points to remind its employés of danger immediately before the bridges were reached. Besides, the deceased had actual knowledge of the height of the bridges, having ridden under them daily for at least 50 days before the accident occurred. These fads not only rebut the charge of negligence, but show, beyond peradventure, that the deceased had assumed whatever risks the height of the bridges might impose on him while in the discharge of his duties. Brossman v. Railroad Co., 113 Pa. St. 490, 6 Atl. 226; Carbine v. Railroad Co. (Vt.) 17 Atl. 491; Smith v. Railroad Co.. 42 Minn. 87, 43 N. W. 968; Devitt v. Railroad Co., 50 Mo. 302-305; Southern Pac. Co. v. Seley, 152 U. S. 145-155, 14 Sup. Ct. 530; Gibson v. Railway Co., 63 N. Y. 449, 453. The case at bar is clearly distinguishable from Railroad Co. v. Mortenson, 27 U. S. App. 313, 11 C. C. A. 335, and 63 Fed. 530, in which case this court held that it was for the jury to determine whether a railroad company was guilty of negligence where it appeared that it had built a bridge across a river the top of which was too low to allow brakemen to ride through the same while standing upright on many of the cars in use on its road, and had given its employés no warning of the danger by whiplashes or otherwise. The case is also clearly distinguishable from Railroad Co. v. Carpenter, 12 U. S. App. 392, 5 C. C. A. 551, and 58 Fed. 451, also decided by this court, where a railroad company likewise failed to give any warning, by whiplashes or otherwise, of the danger incident to passing under an overhead bridge which was too low to admit of a person standing upright on the top of an ordinary freight car, and a stockman rightfully on the top of the train, who was ignorant of there being such a bridge, was injured while passing thereunder. The accident which occurred in the present case was probably attributable to momentary thoughtlessness on the part of the deceased, and was due to a risk of the employment, which the deceased must, in any event, be held to have voluntarily assumed. The judgment below is therefore affirmed.