94 F. 745 | 8th Cir. | 1899
Lead Opinion
This record presents the general question whether a peremptory instruction to return a verdict in favor of George W. Ristine, receiver of the Colorado Midland Railroad Company, the defendant in error and the defendant below, was properly given. At the conclusion of the plaintiff’s testimony the facts which had' then been established were substantially as follows: On August 21, 1894, J. B. Blocker, who was the son of Mary E. Clune, the plaintiff in error, and the plaintiff below, was employed as a railroad engineer, and was engaged in running freight trains over the railroad of the Colorado Midland Railroad Company, between Colorado City and Leadville, Colo.' On the night of that day, as he was running his train through Eleven Mile canon, which is some distance west of Florence, Colo., and had proceeded up the canon about eight miles, his engine came in contact with a large rock that had slid down upon the track from'the slope on the south side of the track in which it had been embedded, the result being that the engine was overturned, and the plaintiff’s son was instantly killed. The rock in question was a granite boulder from 22 to 25 feet long, and was found to be from 5 to 6 feet high, when it landed upon the track, and weighed many tons. The mountain on the south side of the track abreast of where the accident occurred rose at a sharp angle to the height of about one thousand feet, and the foot of the mountain had been scored away so as to form a berm, or shoulder, on which to lay the track. The river or stream which flowed through the canon was on the north side of the track, and immediately adjacent thereto. The grading that had been done at the foot of the mountain.on the south side of the stream to form the roadbed was through a formation known as “slide” or “wash,” and consisted of boulders of various kinds embedded in clay or gravel. The rock which occasioned the accident slid out of the slope at the south side of the track, which had been made when the grading was done. This slope lay at an angle of about 45 degrees. The bottom of the rock as it lay in the slope before it moved was from 20 to 30 feet from the track, according to the testimony of the plaintiff’s witnesses, and at a height vertically of about 6 or 7 feet above the track. In its descent it pushed out of place the track, which was there laid on a fill. It had rained a very little on the night of the accident as the train left Flor
The defendant did not demur to the case which was made by the plaintiff’s testimony, but introduced further evidence, which was to the following effect: The railroad in question had been in operation about eight or nine years previous to the accident. After the contractors who constructed the road turned it over to the Colorado Midland Railroad Company, that company sent a gang of men into Eleven Mile caño a to dress u p the track through the cañón and flatten the slopes. They left the particular slope where the accident occurred at an angle of about 45 degrees, which was deemed safe. No special examination had ever been made of the rock which eventually slid out of place, to ascertain if it was safe, except such visual examination as could he made by an inspector or engineer traveling through the canon on a moving train or hand car. To an inspector thus traveling through the canon and viewing the rock in question, it extended, lengthwise of the cut about 22 feet and up the slope about 1.6 feet. It was nearl,y half as large as a freight car, and the lower edge of the rock Heart’st to the track seemed to have a bearing on other broken rock. From its bottom or lower edge the rock appears to have formed the face of the slope to the height of 16 feet, but it jutted out therefrom a few feet-. At its lowest point, it was 5 or 6 feet higher than the track, and from 10 to 20 feet distant therefrom. Its weight was about 210 tons, and the soil in which it was embedded was known to be ■‘wash” from the mountain. When the rock slid out of place on the night of the accident, it was found to be wedge-shaped; that is to say, the under side of the rock upon which it rested was not fiat, but inclined upwards to some extent, so that it would more readily slide out of place. The chief engineer of the railroad, who had been through the canon as often as six times a month for several years prior to the accident, and had made a visual examination of the road on such occasions, testified, in substance, that he had seen nothing at the place of the accident which led him to believe that the rock in question was insecure. Another witness testified, in substance, that it would have been impossible to tell whether the rock was insecure by sounding it with a hammer, owing to its great size, and that its peculiar wedge shape was not manifest until it had slid out of place. The testimony for the receiver further showed that about August 1, 1894, he had withdrawn the night track walkers from Eleven Mile canon, and that from that time forward until after the accident occurred, the canon was not patrolled but once a day, and then by daylight. This was because the rainy season was supposed to be over, and a night patrol was not deemed necessary.
On the trial of the ease the plaintiff seems to have claimed that on the night of the accident there was some defect in the headlight of the locomotive, or in the oil which was being used, by reason of which fact it did not give the usual amount of light, and in that, way contributed to some extent to the accident. But, as that branch of the case was not. discussed on the oral argument, and as the assignments oí error predicated thereon were practically abandoned, we do not consider it necessary to notice them, and shall refrain from doing so.
In the course of the trial the court permitted the defendant to prove, by way of mitigating (he damages which the plaintiff might recover, that she had collected from an insurance company, after the death of her son, the sum of about $2,000, and for that reason was not entitled lo recover to the full extent of her loss. An exception was taken to the admission of such evidence. We think that the testimony should have been excluded, and that the objection thereto was well taken. When an action is brought against a wrongdoer, he is not entitled to have the damage.» consequent upon the commission of his wrongful act reduced by proving that the plaintiff has received compensation for the loss from a collateral source wholly independent of himself. This doctrine is well established by the authorities, and is applicable to the case in hand. Buth. Dam. (2d Ed.) § 158, and cases there cited. On the second trial the evidence complained of should be excluded. The judgment below is accordingly reversed, and the case is remanded for a new trial.
Dissenting Opinion
(dissenting). I am unable to resist the conclusion that there is no evidence in this case of any negligence on the part of the receiver. The test of absence of ordinary care here is: Would a man of usual prudence and sagacity have anticipated, and have taken steps to guard against, the fall of this rock, under all the circumstances of this case? The rock which slid upon the track was half as large as a car. It wras so embedded in the side of the mountain that it was visible only to the extent of 18 inches. No ordinary inspection or test by the use of hammer or bar could determine that it would ever fall. The railroad had been constructed eight years before this accident occurred, and no cutting or grading or change in the face