84 F. 767 | 7th Cir. | 1898
after stating the facts as above, delivered the opinion of the court.
There are two principal contentions made by the appellant: First, that the train was run at an unusually high and dangerous rate of speed, which was the proximate cause of the accident, and that Meyers, the yard master, in directing the switch train to start ahead of the dummy soon to be due, acted as a vice principal of the defendant, and was guilty of negligence in causing so high a rate of speed; second, that the horse, which was the occasion of the wreck, was fastened in the culvert at the time of being struck, and that the culvert or cattle guard was constructed in a faulty and insufficient maimer, by having the ties so far apart that animals straying upon the track could step through and become fastened in the culvert, which was also the proximate cause of the accident.
There is also one contention made by the appellee and argued at length, which we do not find it necessary to decide, which is that the defendant receiver, being simply the lessor of the company actually in charge of and operating the road, is not liable. The circuit court, among other things, held that Meyers, the yard master, was not a vice principal, but a fellow servant with the deceased, citing the following cases: Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914; Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983; Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; Railroad Co. v. Charless, 162 U. S. 359, 16 Sup. Ct. 848; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345; Railroad Co. v. Brown, 34 U. S. App. 759, 20 C. C. A. 147, and 73 Fed. 970.
From the view we have taken of the evidence, we do not find it necessary to determine this question, as the evidence fails to show that there was any unusual rate of speed, or that, whatever the rate of speed was, it was the result of Meyers’' directions. The engineer and fireman were the persons in best position to judge in regard to the speed of the train. They testify that it was running 10 or 12 miles an hour. Stearns, the extra switchman, says he judges they were running from 12 to 15 miles an hour. Wincher, the other switchman, who was called for the appellant, testified that he thinks the speed was 18 to 20 miles an hour. But the value of his testimony is somewhat lessened by the fact that immediately after the
It has already been said that it makes but little difference whether the horse was in the culvert when struck or not. But the evidence shows clearly that he warn not. Several witnesses for the appellant testify that they saw after the accident blood and hair extending from the culvert along the track to the planking in the middle of the street. This, if there was no oilier evidence, would not show that the horse was fastened in the culvert. It would only show that he was struck near the culvert, — it might he on one side and it might be on the other, — and carried along the track to the east. But the appellee’s evidence, which is wholly uncontradiefed, shows also that there was blood and hair found along the track at some distance west of ihe culvert. M. Me Kern an, who was train master of the Chicago & Calumet Terminal, testified that he discovered a clot of blood, and some horse hair and perhaps a little flesh, west of the culvert, possibly 60 feet. John Conlon, a track foreman, testified that he found blood and other evidences of the horse about 35 feet west: of the west end of the culvert, though he says on cross-examination tha t he might be mistaken about it. He is corroborated by his son, William J. Conlon, who testifies that: lie went to the wreck right after the accident. and that the most westerly point where lie discovered any evidence of the horse was about one rail’s length west of the culvert, where he found hair and blood. This evidence is not at all in conflict: with that produced by the appellant on this question, and the whole together shows that the horse must have been struck some 30 to 60 feet west of the culvert, and carried over the culvert and across the street to the east. Whether he had crossed this culvert or had come on from the street west there is nothing to show. Upon the whole case we are unable to find any negligence on the part of those in the management of the road which caused or contributed to produce the injury to the deceased, and the order of the circuit court is affirmed.