225 F. 976 | 8th Cir. | 1915
Tliis is a suit for personal injuries. Plaintiff below, Peirce, was a passenger on the Wabash Railroad in charge of the defendants as receivers, traveling from Centraba to Mobcriy, Mo. He was riding on a limited passenger train, which was running at about 50 miles an hour. There was evidence that it swayed badly, owing to the condition of the track. It passed through the Low 11 of Renuick without stopping. At or about that point the window opposite which the plaintiff was sitting was crushed in. Two other windows on the same side of the car were destroyed, and the frame of one of them broken. Plaintiff’s evidence tended to show that the entire windows were knocked out. After the accident the car was searched, and no missiles were found in it which could have caused the injury. There was evidence tending to show that at the time of the accident the train was passing a freight train on the siding at Renrich. Plaintiff himself probably jumped into the aisle as the result of the shock, and received injuries which rendered him unconscious. The plaintiff recovered judgment, and defendants bring error.
At the close of the evidence defendants moved for a directed verdict, upon the ground that there was no substantial evidence tending to show that the accident was caused through any fault of theirs; that whether the accident was caused by a missile hurled by some miscreant, or was caused by some object adjacent to the track upon which the train was running was a mere matter of conjecture. In support of this motion counsel cites a list of cases, of which Pennsylvania Railroad Co. v. McGaffrey, 149 Fed. 404, 79 C. C. A. 224, Thomas v. Pennsylvania & Reading R. R. Co., 148 Pa. 180, 23 Atl. 989, 15 L. R. A. 416, and Deagle v. N. Y. & New Haven R. R. Co., 217 Mass. 23, 104 N. E. 493, are examples. There, however, the evidence showed that a missile was thrown into the car through a window. Such evidence points to the act of a miscreant rather than the negligence of the company. Here no missile was found, and the injury to the car justified the inference that the accident was caused by sdme object on the right of way, or more probably by projecting- scrap iron with which some of the cars of the freight train were loaded. To' call such an inference a mere guess is only to apply a term of vituperation to an inference which counsel does not wish to have made.
The judgment is affirmed.