Kansas City Southern Ry. Co. v. Moles

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is assigned for error that the court permitted the plaintiff to prove the statements of the conductor concerning the accident, to the following effect: The witness Dollarhide testified as follows: “Q. State to the jury what the conductor said when he got to you? A. He said he didn’t want any of us to think hard of him; that he didn’t intend to kill a man on purpose. Q. State all he said. A. He said he knew the car was set there for the purpose of being unloaded and he thought, it being noon, that we was to dinner.” Another witness testified that the conductor said: “ T thought you all had gone to dinner;’ that he ought to have been on the lookout, but he thought we had gone to dinner.” These statements were made at the very time and place of the accident, while the cars were still in motion, and while the plaintiff’s leg was still pinioned between the slide and the interior wall of the icehouse. The crash of the cars and the cries of the injured man and others brought the conductor, who was on the cars “kicked” in that occasioned the accident, to the spot instantly, and what he then said was clearly part of the res gestae. Peirce v. Van Dusen, 24 C. C. A. 280, 78 Fed. 693, and cases cited in footnote. No exception was taken to the charge of the court. The defendant preferred several requests for instructions, all of which were rightly refused. By the terms of the first request, the obligation of the railway company to exercise ordinary care in switching its cars was restricted to persons “engaged in work in and about the cars on the track.” This was restricting the defendant’s obligation within too narrow limits. Moreover, the charge in chief stated accurately and fully the degree of care the defendant was required to exercise. The third and fifth requests relate to the defense of contributory negligence, but, as there was not a particle of evidence to support such a defense, they were rightly disregarded by the court. By the fourth and seventh requests the railway company, in effect, sought to apply to the case the doctrine of inevitable accident. Upon the proof in the case, it is difficult to treat such a suggestion seriously. The conductor who had charge of the defendant’s train was called by the defendant as a witness, and testified: . “We had come to Dequeen at the dinner hour for dinner. We had two loads of ties to set out on the cotton track; and one of my head brakemen cut the cars off and kicked them in, and I rode them, and did not stop just in the clear, and they rolled down and struck the ear which was supposed to hurt Mr. Moles.” [353] Asked why he did not stop the cars, he answered, “They were heavy cars, and hard to stop.” The accident in this case resulted from that fruitful source of accidents — a running or flying switch — which has uniformly met with judicial condemnation, and. which is prohibited by rule of some, if not all, railroad companies. Shearman & Redfield on the Law of Negligence (5th Ed.) §§ 461, 463, and cases cited; Beach on Contributory Negligence (2d Ed.) § 217; 1 Thompson on Negligence, 423, 452. In this case, without warning to persons working on or near the track who were liable to be injured by the cars “kicked” in on the switch track,' two cars loaded with ties were sent speeding down the track by a flying switch without, any adequate means of controlling them, as the conductor of the train, who says he was riding the cars, admits. The jury were entirely justified in finding that it was an act of negligence to make this flying switch under these circumstances, and that the railway company was liable to the plaintiff for the damages resulting to him therefrom. The judgment of the Circuit Court is affirmed.