WHELAN 'l1. NEW YORK, L. E. &: W. R. CO.
15
pay'pre-existing debts of classes out of the earnings of the receivership, or even the corp'U8 of t}ie property, .underthe order ofthe court, with a priority of lien. Yet the discretion to do 80.sh()uld be exercised with very great care. The payment of such debts stands prima facie on a different basis from the payment of claims arising under the receivership, while it may be brought within the principle of the latter by special circ.l,lmstances. It is easy to see that the payment of unpaid debts for operating expenses accrued within ninety days, due by a railroad ,compnny sUddenly deprived of the control of its property due to in its employ,whose cessation from work simultaneously is to be cated in the interest both of the property and.of the public, and thepaymentof limited amounts due to other connecting lines of road for rials and repairs, and for unpaid ticket and freight balances, the outcome of indispensable business relations, where a stoppage of the continuance of such l1Usiness relations would be a probable result in the caSe onlOnpayment, the general consequence involving largely also the interests and accommodation of travel and traffi.0, may wen place such payments in the category of payments to preserve the lllortgagedproperty, in a large sense, by maintaining the good will and integrity of the enterprise, arid entitle them to be made a first lien." Miltenberger v. Railroad Co.; 106 U. S. 286, l'Sup. Ct. Rep. 140. The exception to the master's report in this case will be overruled, and the report will be confirmed j the decree to be entered, however, will dismiss the intervention with6ut prejudice to any rights that intervenor may have toproeeed as a general creditQr against the Houston & Texas Central Railway Company. . .
WREJ,.AN
v. NEW
YORK,
L. E.&. W.
R.Co. 19,1889.)
(Oircuit Oourt. N.D. Ohio. E. D. 1.
RAILROAD COMPANIES-AcCIDENTS AT CROSSINGS-GATES.
2.
SAME..
a. 4.
When a gate established by a railroad company at a street crossing is open, a street·card,river may assume that the track is clear and safe, and is not negligent for passing through the gate without stopping to look or listen for a train. .
SAME-STOPPING AFTER PASSING GATE.
Nor is it negligence, after·passingthe gate, to'stop and look and listen before crossing the track, if ordinary prudence or oare be exercised to cross the the track, and avoid injury. In a collision between a railroad train and a.street·car. at a street croBsing, if the railroad seryants are negligent the negligence of the street-cardriver cannot be imputed to a passenger in the street-car. who is injured. 1 . ;" . ';1 ... ,
SAlIE-'-COLLISIOlir WITH STREET-CAR-IMPUTED NEGLIGENCE.
. IOn tM general subject of negligeJlCe imv.utedto a see ltallroad Co. v. (Telr.) 111::). W. Rep. Cooper's Adm'r, (Va.) 9 S. E. Rep, 821; Ral1road CQ. v. , 127; and note;' Shaw v. Oraft, 87 ll'ed.Rep. 317, and note. ". · .. . . .
16 6.
.J.4"EDERAL REPORTER, vol.
38.
SAME-PRoXIMATE CAUSE.
But the railroad company is not Hable if the injury to the passenger was due solely to the negligence of the street·car driver. The ordiuances of a city regulating speed of t,rains and train do not change the general law on the subject, nor change the rights and duties of the parties grOWing out of obedience or disobedience of the ordinance.
6.
SAME-RATE 011' SPEED-VIOLATION 011' ORDINANOE.
'1.
DAMAGES-FoR PERSONAL INJURIES.
In assessing damages for personal injuries, the jury should take into account exp'enses incurred for medical attendance and nursing. compensation for pain and suffering, loss of what might otherwise have been earned in business or profession,. and of what the injured person has been deprived of earning by any permanent disability, so far as the result of the injury. Standard life and annuity tables are competent evidence in determining such . .
. 8.
SAME-EvIDENCE-ANNUITY TABLES.
At Law. Action by William J. Whelan against the New York, Lake Erie &: Western Railroad Company, for damages for personal injuries. Plaintiff was in a the city of Youngstown as a passenger. As the street-car was passing the crossing of the defendant's railroad,a'locomotive ran into it, knocking it off the track, and throwing plaintiff from the car upon the ground, injuring'him severely. Plaintiff alleges that defendant was guilty of negligence in not closing the gate it had established across, the street on which the street-car was approaching towards _the crossing, at the time the engine was about crossing the street-car track; that therewere no proper signals given of the approach of the train; and that the engine was running at a dangerous speed at the time. This negligence was denied by the defendant, and it also alleged contributory negligence on behalf of the plaintiff. The evidence showed that the gate was not closed at the time of the collision; that the street-car passed through it. There' was a conflict of evidehcewhether the streetcar was stoppM after passing the gate, and before the collision, also a conflict as to the ringing of the bell of the engine, ane{ as to the speed thereof at the time. There wlls not shown, in the proof, any negligence <or want of care in the crossing On the part of the plaintiff himself, but the defendant claimed the car-driver was gnilty of contributory negligence that must be imputed to the plaintiff, and so prevent his recovery. ,For ,opinion on motion to .remll-Ad to stale court, see 35 Fed. Rep. 849· . . ..4. W.Jones, R. B. Murray, and W. S. Anderson, for plaintiff. S. E. Willwrinson and Hine' & Olarke, for defendant. WELKER,
J.,charged·thejury, among other things:
'1. That it was the dutyof the defendant, having placed across the
street near its crossing a gate under the care offt.1I flagman, as a reasonal?le . precaution for the f1afety of persons passing over its track at the crossing, to -'close dQwnthe gate its cars, or engine were passing over the street crossing;' and along its track, 'in order to make it reasonably $afe for persons so passing... That it was the duty ofdefendant . ' about to pass over' to gjve su<::hreasonable and proper
WHELAN
v.
NEW YORK, L. E. & W. R. CO.
17
warning, by ringing ofthe bell or blowing of the whistle, of its intended crossing of the street, and to pass over the crossing at a reasonably safe speed. Failing to exercise such care would be negligence to the extent ' of such failure. 2. The gate being open, the car-driver had the right to suppose the track was clear, and was safe to cross, and was guilty of no carelessness in passing through the gate towards the crossing without stopping at the gate to look or listen for a passing engine. 3. It was not carelessness in the driver of the street-car, after passing the open gate, and immediately before crossing the track, to stop and look and listen for approaching engine, or to ascertain whether there was danger in proceeding across, if in so doing he exercised ordinary prudence or care in attempting to cross the track and avoid injury. 'That if, in so stopping and listening and looking, he discovered the engine approaching ata dangerous speed, or in close proximity to the crossing, it was, in the face ofsuch danger, negligence on the part of the driver to attempt to cross the track. 4. Thp.tthe plaintiff at the time was only a passenger in the car: He had, nor could have had, no control in the management of the car,-of of its stopping or going on; and not in a situation to himself look out for, or prevent, danger in crossing the railroad track. I direct you, therefore, that if the evidence shows no tauit of omission or commission in the conduct of the plaintiff or negligence on his part contributing to his injury, the negligence of the. driver, if guilty of any negligence, cannot be imputed to the plaintiff so as to prevent his recovery in this case, if it is shown that the deftmdant was guilty of negligence which 'produced the injury, or directly contributed thereto. 5. That, if the injury to the plaintiff was occasioned solely by the carelessness oLthe driver of the street-car, the defendant cannot be held liable for the injury thus produced. 6.· That the ordinances ofthe city of Youngstown regulating the speed of trains passing through the city, or the blowing of the whistle on engines, are only police regulations, and do not have the effect of changing the general Jaw upon the samp, subject, or change the duties or rights of the parties growing ont of the failure to do, or doing, what the ordinance commands or prohibits. 7. That the assessment of damages to the plaintiff, if the jury find for the plaintiff, was under the control of the jury. That there were cert.ain elements to be taken into account insuch assessment, such as reasonable compensation, so far as it is susceptible of an estimate in money for loss and damage caused to him by the defendant's negligence, including not only expenses incurred for medical attendance and nursing, and a reasonable sum for his pain ahd suffering, but also a fair compensation for the loss of what he would otherwise have earned in his profession or business, and has been deprived of earning by any permanent disability shown to have been stlscained by the wrongful act of the defendant. That if theplaintilf, before the injury complained of, was already suffering und6r. permanent disability, then the defendant would be linbleonly
18
FEDERAL REPORTER,
vol. 38.
for such additional disability , as was the reslllt of such injury. In ascertaining the damages forimpaired ability to earn a livelihood, standard life and annuity tables are competent evidence to be oonsidered. -Verdict for the piaintUf for $7,250. , ;r,
No.2 .' .
Oll' .LAKE COUNTY 11. SEARL·
(Circuit Court, D. Colorado. January 12, 1889.)
EMINENT DOMAIN-COMPENSATION-brPROVEMENTB.
A receiver's receipt for, a placer claim was issued In April, and a patent in May, for the price of $2.50. The land was worth $3.000. In July, a school board, acting under advice of counsel, purchased the land from for $3,500, and erected a school·house op it for $40,000. On condemnatIOn proceedings by the SChOOl.district"held. that it should, pay for the placer title '3,000, ana should not pay the value of the improvements.
At,Law. " " Petition by: school-district No.2, of I..ake county, for the condemnation Qf the plaqer title Ofrespondent, Searl",to land occupied by petitioner's , . school-house. TlwnUJO'YI'. Jc Sawyer and ,A. S. Blake, for lJ'. 'W.· Qwer8and P. Ro8e, ,for. defendant.
s..
BREWl!l:n,3'., (orally.) .:tt appears that in: April, 1881. a receiver's receipt wmdssued for a iplacer Claim, and on the 18th of May, 1881, a patent was issued, and on the 1st day of 3'uly, 1881, the school board purchased from certain occupants of these premises this ground, and paid $3,500 for it. It acted under the advice of counsel in favor of the occupants, and against the placer title. The land (less than an acre) was then worth $3 tDOO. The board has since erected a $40,000 . on the proplJrty. . We all know that that which gives value to land in a city is not the "effort of anyone man; that,it is the aggregation of the efforts of many citizens. Thegovemment. in the slJringof 1881, sells this placer ground "for $2.50 an acre. In' the same year an acre of that ground is worth $3,000 1 made so, not by the efforts of this present owner, but by the ef,'forts and toil of the public; He has obtained from the public, represented by the land for which he pays $2.50. The efforts of a , small portion of the public have made that land worth $3,000, and the 'samepublic.has taxed; itself to put$40jOOO worth of improvements upon it; and then,becausethe legal title is 'put into his hands, he wants the public, which has thus made the land worth $3,000, and then paid for $40,000 worth of improvements upon it, to pay him that full sUn1,$40,,000. There is not one shadow of equity in it. Counsel· says that this
.TONES, tl. SOUTHERN INS. CO"
19
claimant is hurt by the conduct of the school-district, so that he feels like insisting upon his (, pound of flesh;" Well, all I can say is that this court is the poorest place on the .continiOmt for any·" pOllnd of flesh" transactions, and if there was ,not a precedent or authority for such a ruling I would make one in this case. I never would put myselfonrecord as saying that a man; un,der the circumstances, could compel the public to pay $40,000. If there is any law for such a claim somebody else has to affirm it before it can be allowed here. These various, instructions will all be refused, except the last, which I presume is in ae-: cordance with the language of the statute. GelltJemen of the jury, you are instructed that the form of yourverdict will as follows: "We, the jury, find, first that the accurate description of the property sOllght to be condemned in thia action is lots 812, 811, 816, 818, and the llorth 13.6 feet and the east 35 feet ofJot 810, North Poplar street, and lots 211 and 213 East Ninth street, in Cooper's subdivision of the surface of the Sizer placer,United States survey,No. 388, situate in the county of Lake and sta.te of Colorado, together with the improvements thereon. Second, that the vlllue of said properLy"t this date is $3,000."
JONES
et j" ,
al.". SOUTHERN INS. Co. ,
Oourt,E. D. A'I'ka1i8a8. February 3,1889.)
A policy cOlltained covenants that the assured was to keep a Bet of books showing a record of all business transacted, and to keep them locked in a safe at night and at all times when the store was not actually .open such books to be produced incase of loss; and"on failure to produce them. the policy to be null and void. In a suit on the policy the evidence showed that itwal\ customary for merchants to keep their stores open forbusin'ess as late as 9 or 11 o'clock at night, and the loss occurred about 9 o'<)lock at night, while the store was open for businesllI. and while plaintiff was writin¥ up his books. Held, th\'t the covenaut did not require the books to be keptlD a safe from sunset to sunrise, but from the time the business of the day was ended. and the store closed for the night. B. SAME. The covenant to keep books, aIld the covenant to keep them in a safe, mnst be construed together, and. in the absence of au express stipulation to the contrary, the covenant to keep books should be construed to mean that they shall be kept in the time and. manner customary with merchants.
1
!NSt1RANCE,-CONDITIONS m POLIOy-ltEEl'INGBoOKS.
At Law. Action on a policy .of fire insurance. 1st day of October, 1887, the to tpe plaintifls On a policy of insurance for $3,000, against loss by fire general merqhandise in their store-house at Riverside. Thel$tore:house and goods, and moat of the plaintiffs' mercantile. books, were destroyed by fire,an.d this is a 8\lit to recover the amountoftq\.'l policy. The pc;>licy contains this clause: