CITY, F.
S.
&. M.
R.
CO.V.
STONER. STONER.
209
KANSAS CITY, F. S. &; M. R.
V.
Court 0/ AppeaZ8, EilJht CircuU. February I, 1892.)
L
CARRIERS 011' PASSENGERS-9<>LLISION 011' TRAINS-INSTRUCTIONS.
When 8 is injured by the collision of trains at a crossing of two r;il roads; eacli company is liable in full if its servants are negligent; and hence in an action. both it is proper to refllse an instl'1lction requested by one, correctly definingtl:leuuty of the other with res.pect to the care to be exercised in approachin.g tbe.oroBsing, and casting upon it the liability in case the jury found a breach of the duty. Both companies are bonnd to the same degree of care, and the instruction sbdulo'be made applicable to both.
lJ, BiME.
In l:l.UA1I: all action one of the companies requeste.da charge that its employes were only bound to exercise ordinary prudence; that, in deterlllining whether they did so, all the circumstances should be o0nsidered; and that, if they did exercise orillnll,ry. Prude,nce. the company was .not liable. "although the jury found that they nerformed some acts or omitted others which in the light of subsequent events i : would have prevented the collision." Held, that it was not error to omit the quoted since it contains an independent proposition, which should have been preferred asa separate request. . .,
8.
Where a collision occut'S between the regular trains of two railroad cOlllpanills at a.crossing th.e.ir tracks in b,r.oad daylight, a presumption, arises of negligence. on the plIort of one or both; arid, in an action for injuries to passenger, it is proper to refuse a oharge that one 01 the companies was not afleotlldbysuch prel:lumption. f. 'BAME-'-I1fllTatrliTtoNl:l. In an' action bya passenger for p8rl:lOnal injuries the court oharged that, unleSl:l an act at: omission· contributed to tlie. injury "directly or indirectly" it l:lhould IU)t , considereq. ,Held, that the use 01 tlle words "or indirectly" was harmless whell there was no proof of any fact that could be considered as a secondary or remote calise. ' ' 15. SAl\IE-DAlIUG1ts'-:-FuTtJREElI'lI'EOTS. . It was Rrpper that plaintift colild only recover for sucb future consequences as were reasonably oertain to ensue, and not for" merely possible or even probable future effects not now appareut," as the quoted words qualified the correct proposition expressed in the precedingclaullll, and were liable to mislead the jUrY. ,
011' NEGLIGENOE.
In En-or tothe Ch'cuit Court of the United States for the Western Di. vison of the Eastern District of Arkansas. Action by John H. Stoner against the Kansas City, Fort Scott & Memphis Railroad Company. There was a judgment for plaintiff, and defendant brings error.. Affimled. C. H. Trimqle, for plaintiff in error. J08e:ph W. Martin, for defendant in error. Befbte CALDWELL, Circuit Judge, and SHmAs and THAYER, District JudgeS. TRAYER, District Judge. , The defendant in error brought suit against the Little 'Rock & Memphis ,Railroad Company (hereafter called the "Little Rock Company") and tile Kansas City, Fort Scott & Memphis Railroa4 Company (hereaft!;lr called the "Kansas City Company") for persQnalinjuries sustained in consequence of a collision between trains of the respective companies at a crf>ssing of the two roads in the state of Arkansal!1 a few miles west .of MenlPhis,TellU. A westward-boun.d pasCompany wlls '. over the crossing senger train of, "the LitP.e . v.49F.no.3-14 .
(":
210
'FEDERAL' REPORTER,
vol.··49.
about 6 :30 P. M. on July it was run into a southwardbound freighftrain: oC:the Kansas City Company, and tlie defendant in error, who was a passenger on the Little Rock Company's train, sustained injuries for which a jtir)rawarded him sum of $3,500. No further statement of the circumstances attending the collision is deemed iUs not claimed> that the case should have been withdrawn from the consideration of :the jury. The trial resll1ted in a verdict exoneratipg)neLittle Rock c.om{>MY;ftom ailliabilbut holding the Kansas City Company responsible' in the sum above stated. The errors assigned relate exclusively to the of the lower court, and its refusal. to give certain requests asked bythe Kansas City ·. WfJ the Ilevera! in the order in wbich,they have been stated .by c'Junsel. . error assignEldillt1l8.·,:refusal of give the followioginstruction, which was,asked. by theplaiIitiff in error: .. "'rt'w'as the duty of the employes operating train to come to a full stop within a reasonable distance of the crollsirig. lIoXld to both look listen for,anytra1n that might be 'approaching it on th'6, other road. .It was 'alsotl,),l'ir',dl)ty. atterstopping,apl;llookiilg lind to approach the wItll blfartrains.that might be on the other road. If the engineer saw a traIn on the KansasCity road befure'or at tbe :tiqre bise,lIrginert>l1ch,ed the croslliug. it was his duty to it wl.tt>,th.ei'lt was in'!ilotion. and be certain c!>!Jicle.w,ith he w!iS:pullillgbefore, he proceeded over the or drew the cars containing thEl passengers onto the track·. If he failed in the performance;Qf anyot theseduties,itwas.negRock'&'. Memphi&Rallroad Company would be Hable '.,·,',.. "J . . ',' ' . 'oftha opiiiion' that the 'Kansas City'Cob-ipaoy ',is. not ,'entitled to complain of the refusal to give the foregoing request,even though we the.. va.r. . ., j>re,,c.qU.t.i.O Ils ·.Wh.i.C",.t.he . persons in charge of the ;Qllye, The' CaSe was, sllbIAitted to from the ',court whicbproptqe the inerr()r Itansas CIty' Company; as well as the, degree of that the pany was bound to exercise freighttrai#, the crossing. Under such instructioIlS".cor,rectly defining)l1e.duty of 1t,iffli,n jurY1 thl1-,tthe c,ollision,. was the its . ", ." neg Igence. It may be that the Little Rock Company was equally CUlpable, or ,thatthe mgherdegree of owed error, bYJea.son 'of his bei.nga:passenger :on itstrain,'Y0ula: :Jla1ve ''''arranted 'B'verdict well Kansas CityCompany, and that 8U(lb.verdrct 'would have' been had'mdrespecificinstrlictions been gi"Veti. .' But. this' 'Plea clJ.nlnot avail the plaintiff in erfor, for the reason thaHt liable' for all the 'injuries the defenilanfin error has sustained, if .itS'negligenpe· direcU,y ¢Qfitl'ibutEid' to .· (lie' '()ollision; and that it by tbeyerqict of the' jury' under .irmtructioris'C6iTeetly defining' its 'dlitY;a8 . to' which ',' exception waif no , '_. .. ,
We
; ",1',
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KANSAS Cl1!rY, F. S;& M. R. CO. ft. S'fONER.
taken. It is to be:observedJhat the request preferred to the lower court. by the, plaintiff in error related wholly to the degree of care its.co-defendant should have exercised. .It was not framed with a view of elucidating its own duty, but for the obvious purpose of castbg as large a measure of responsibility as possible on the Little Rock Company. If tbecircuit court had defined the duty of the Little Rock Company in the mlj.nner requested by the Kansas City it should in that event have defined the duty of the latter company in similar language. In other words, if it adopted the instruction, it should have made it applicable to both companiel;l. Both trains were bound to take the same precautions in approachiQg the crossing, ,lj.Dd the jury should have been so advised. For the reasons stated, no error was committed in refusing the request. . The plaintiff in error asked the circuit court to charge the jury in substance as follows: That. employes in charge of the freight train were only bound to. exercise ordinary prudence; that in determining whether such degree of prudence was exercised, the jury should take into consideration all the circumstances of the situation; and that, if they did exerciseordinary prudence, the Kansas City Company was not liable, "aT,. tluYugh t.he jury found tlurt they /lome acts or omitted other8 which in the BUbBeqUent eventB * * * would have prevented the colli8ion." The.court gave the several directions contained ill the request except the clause, which is in italics. Such action is assigned as error. the opinion that the assignment is not tepable. It will be observed .thatthe conclu4.ing paragraph bs no necessary relation to the prece(!ing propositions onaw stawd in the request. It neither qualifies nor explains them, but is all abstract proposition, not directed to any particular matter or fact in controversy. To speak more aecurately, it was simply a adnwnition,to the jury that the quality of an act alleged to be negligent qughtXlot ,to determinedexclusivt:ly ill the light of subsequent events. That may be, and no doubt is, a very proper be given.in certain especially in a case where the jury might be in 'doubt as to whether the act of omission or commill8ion counted upon amounts to culpable negligence. Expres8 Co. v. Smith, '33 Ohio St. 519·. But if,an instruction of that characteria sought, it.should be preferred the forOI of a separate and indepentieut request; and, in any event, we conclude t,hat the present record does not discloae a state of facts which rendered such an admonition either neceSsary or appropriate. Error is also assigned becatise of the refusal of the circuit court to grant the following request: ' "There Is DO pl'lisumptiotl of.neglip:ence as aJrflinst the Kanlll\S City CompanyaJ,"iMjng from the fact that ,the <lollisioll ot·curred. :.rlJe plaintUf must
in
show, by,a ,prf>ptinderallce of the testimony that it was auHty of negligence which! . ' a direct cause of the injury." wlls , "
lowing croslilUlg.,
the opinion that this assignment is not tenable for the folThe collision occurred in broad at a level two regular, ,trains of.. the; respective companies.. No
1l1CDERAL ltEPORTER,vol. 49.
explanation of the cause olthe CGllision. was attempted at the trial which but each would .exonerate both companies from the charge of company sought to cast the blame upon the other. Under these circumstances, we think there was presumption' that the collision was due to the carelessness of one or the other, or both, of the defendant companies. Such being the presumption, the court below acted properly in/defining the degree of care each was required to exercise, and in leaving the jury to determine, in the light of all the testimony, upon whom rested the responsibility for'tne collision. It was not bound to deClare'. nor would it have been proper to declare, in a case ofthis character, that the Kansas City Company was not affected by any presumption of negligence. Complaint is further made that the lower court refused the following request:" "The 'plilintiff is entitled to recoverdnly for suchflltureconsequences of the Ji'ijurthitlicted on him as the proof shows'you are reasoriablycertain to ensue. Damllgesshould not be assessed for merely possible.. ble, future effects not now apparent." We think 'this request was properly refused, because' it was liable to inislead'the jury. Thenrst paragraph of the request states 'a,correct proposition, 'applicable to the. assessment of damages. ,. The last 'clause, howeveJ',declares that "damages should not be assessed for * "" * ruture, effects not now applirent" This, was liable t?be stood',lis't'neaning that there ought to be no allowance made for the probable ,ofan injury, unless ,the effects areBO appareht at' the time of the trfal,or so manifest, as to be absolutely certain to' occasion loss, and merely reasonablY' certain. Ih other lirords, it limits andrrlight have put a flllse color pnthe preceding proEositiOli. As the couti had already given the jUry -rery full and fair directions as to the assessment of damages, we think.it was under no <>bligation to givefhedirection last above mentioned. ' Finally, it is said the circuit court erred in the extract from its . ' , , "Speaking of )legilgence, I wHISR, to you, in the of the Lfttle Rock &; Memphis Railroad Company: · The only acts at rlegligence on the part of the defendants, or either of them, that will be considered by the jury, are thoSEl'\'\Ihich in some' way contributed to the injury.complained of by the plaintiff.·, Any other acli!l not SO contributing will not be ,regarded by ydU.' '£hat, gentlemen of the jury, In substance should govern yOlj inyourqelii)., erationsin·thill;!lase. Unless an act or 0lllission contributeq ,to the injury, ' directly or indirectly, it must not be considered by
a
Complaint is made of the words ,"'or 'indirectly,'1 in the conclur'ing these w0r.ds are understood to mearrtha t the jury were at liberty to' consh'ler remote acts of negligence as disth1guisbedfrom mary, and if there was proof of such remote acts, we 'cheerfully concede that the dlreetion WaS erroneous. But we have lo6ked thpollghthe reeord,invainJor any evidence tending to show an act of oillission or cont1 lDission on tJ;lepart of the KausasCityCotnpany which it 1$ 'pOSSible to
CITY 011' GOtDSBORO 11. MOFll'ETT.
213
regard as a secondary or remote cause of the collision. The use of the words "or indirectly," in the connection above stated,waa not a materiltl error. Upon the whole, the case appears to have been tried by the circuit court with commendable accuracy and fairness, and its judgment is Lerefore, affirmed.
CITY L
OF GOLDSBORO V... MOFFETT
et aL
(CitI'cuit Court, E, n'Korth CarpUna.
January 13, 1892.)
s;
" A city passed an ordinance Iluthorizing a certain firm to constructwater-w'orks .,. for it upon terms fully, set QUt. "This waa by thEl firm, of the acceptance was to a copy of the ordinance. and SIgI!ed 1D of '.' the city by the mayor and' tbereof, under its corporate seal, and by tile firm and each member thereof under their individual sea1&. IIeld. that thi,s:const1tuted, a binding contract. ' .. . ' , "· BOims-CONsTRUCTION-BREAiJIf·
MUNICIPAL ORPOBATIONS-CONTRACT-ORDINANCES.
.Thell.rm gave a bond whiCh, after recitlngthat the same was required df,them "f,orthe fai.thfuI,P.erforma.nce oftheir contract;". express.ed. the condition to be that they should faithfully perform their contract "during the construction of said works." Held,that'tlie latter words did not restrict the scope onhe Dond to the period ?f actual CODStntCtlOD; but, on the contrary, a failure to begin the work' at l\ll,eonstltuted, a breach.' ./ ' ,,' The amount of damages wlls at least equal to the dilference between.the contract price and the compensation provided for in a new Contract made in pursuance of a bid, secured' bv a subsequent advertisement of the same work. '' , ' , ' , . , ,
8, SA.KE-MEASURE OF D4HAGBII. .
At Law. Action by the city of Goldsboro against John F.Moffett, Henry C. Hodgkins, and John V. Clarke as principals, and DanielG. Griffin as, surety, upon a bond to secure the performance of a contract to buiidwater-works., Jury waived and trial to the court. Judgm('nt for plaintiff. Reade, Bu8bee& Bmbee, for,plaintiff. ' , Thea. F.Klutz, for defendants. " , , SEYMOUR, District Judge. The city ofGoldsboro, by its boardofaldermen, in the spring of 1887,enacted a city ordinance authorizing the firm -of Moffett, Hodgkins & Clarke to construct, maintain, and operate waterThe works in Goldeboro, upon terms fully set forth in the -ordinance was accepted by the firm of Moffett, Hodgkins &, Clarke, which consists. of the defendants John F. Moffett, Henry and John V. Clarke, and, :an instrument embodyi.ng a memorandUm of its acceptance was on the 5th of April, 1887, annexed to a copy of the ordinance, and signed in behalf of the city by its mayor and'derk j under itscQrporate Real,and; by the firm and each member thereof under their individual seals. Under these CirCUt11stances the CO\l.rt is Itt a.loss to conceive upon, what ground the position of .1, that: the. city ordinance did not constitute acontract','irests; , I f