122 F. 425 | 8th Cir. | 1903
This is an action which was brought by J. F. Crumpler against the Louisiana & Northwest Railroad Company to recover damages which the plaintiff below sustained in consequence of the derailment of one of the defendant company’s trains on which the plaintiff was riding as a passenger. The complaint alleged, in substance, that the derailment was occasioned by reason of the fact that the defendant company failed to provide the plaintiff with a safe car wherein to ride, in that the wheels or running gear of the car were so defective, for some reason unknown to the plaintiff, that they would not properly adhere to the rails; and that the defendant company failed and neglected to exercise proper care in providing a safe track upon which the plaintiff was to be carried, in that the roadbed where the derailment occurred was unevenly graded, that the ties upon which the rails rested were placed at an
The defendant company took no exception to the aforesaid charge except to the paragraph which declared that the duty rested upon it to exercise the highest degree of practical care to provide a safe roadbed, sound cross-ties, and safe cars to transport the plaintiff, and that if the defendant was negligent in either of these respects, and the plaintiff was injured in consequence thereof, he might recover. This exception is not argued in this court, nor could the principle of law announced be seriously challenged, since the same doctrine was enunciated in Indianapolis, etc., Railroad Co. v. Horst, 93 U. S. 291, 296, 297, 23 L. Ed. 898, from which the charge of the trial court seems to have been compiled.
The defendant company complains, principally because the trial judge declined to give two instructions that were asked in its behalf. One of these was an instruction to the effect that if the roadbed was in good condition where the first car jumped the track, that if the rails did not spread and the ties were not broken, and if the track at that place was intact after the wreck, then the jury could not, find that the track was defective. The other was an instruction to the effect that if the wreck was caused by some defect in the car which first left the track, such as a stiff truck, and that the defendant, in the exercise of the utmost care, skill, and diligence, could not discover such defect or anticipate that the car might leave the track, then the jury should find for the defendant, unless the jurors believed that the defendant was running its train at a fast and unusual rate of speed.
We are of opinion that no error was committed in the refusal of either of these requests, as they were comprehended in substance by the instructions that were given by the court of its own motion. The first of these instructions stated a mere truism, namely, that if the track, at the time of the derailment, was in good condition, then there could be no finding against the defendant on account of a defective track. The other instruction, to the effect that if the derailment was occasioned by some defect in one of the trucks, which could not have been discovered by the exercise “of the utmost care, skill, and diligence,” then the defendant was not liable, was a direction which was practically given by the court as heretofore shown. In other words, the jurors were instructed that the defendant company could not be held accountable for a derailment that was occasioned by a defect either in the track or car, against which the defendant could not have guarded by the exercise of the utmost care, skill, and diligence. We think that the case was submitted to the jury under instructions as to the law that were substantially correct, and that no occasion exists for granting a new trial. • It is highly probable that the jury were of opinion that the defendant company had not succeeded in overcoming the presumption of negligence which was raised by the fact that while the train was moving at a usual rate of speed it left the track and rolled down an embankment.
The judgment below is accordingly affirmed.
1. See Carriers, vol. 9, Cent. Dig. §§ 1168, 1170, 1177.