FEDERAL REPOR'fER,
in the vicinity, WaE! then they should disregard all evldllllce ,as to the fot' hay at other places." 'l'his request the court denied inform,but charged in as follo"Ys: "That measure of was the market .value of tile hay and six ,interest, and, ift\llll',e was no local market value, that the value per might be ,1lxrd withrefereilce to the market value at the nearest place where bay was sold, due being made for cost of transportation," etc.
We are unable to discover any materilll error in this direction or in tbe refusal of the receivers'request. It is evident, we think, that the jury must have understood. the chargeasa direction to allow the market value of the hay at' Wagoner, if there was a local market value, irraof its value elsewhere. There is also abundant evidence in the case to support the ,finding of the jury as to the value of the hay. We have, as before stated, considered all of the exceptions taken to the action of the trial court, but have only mentioned those which appear to us to ,have most weight. The case seems to have been tried in the lowe" court with a view of saving as many exceptions as possible, and, in view of that fact. we cannot refrain from condemning a practice which 8ubserves1)o useful purpose, and imposes'so much unnecessary lahor on an appWlate court. The judgment of the lower court is hereuy affirmed.
EDDY et
al.
tJ. POWELL.
(C'l.nrttCt Court o/A.ppealB, Eighth CirQu1.t. February HI, 1802.) 1. 1"L1UDING-AMBNDMBNT.
.
Plaintiff's oomplalnt, tn an IIil1tton for personal injuries, was entitled as all'atnst "E"and Rceival's," and in the opening. paragraph pJainti:J complained of "the defendants E.and C" rllPJivers of" a cllrtaln railroad, to be iii corporation doing oU8111ess, etC: Held. that an amendment W¥lI properly allowed so as to state a case IIill:alnst defendlillta In their official capacity" as" receivers·
C.,
.. RAILROAD
Plaintitf,.while driving 'over defendants' crossing between two sections of a train whioh had btlen cnt 80 as ,1;0 make a passage, was caught between them by the sudde.nmQveWllnt, without warning. of one of the sections, He testified that he waited'to c'toss, but was S,ignaledby the train brakema,n, to,proceed. but In this he , was contradicted. Held;that,a charge, in substance. that ,if plaintiff was directed by the brakeman to cross. qontrarv to his previous intention. and in SO doing he Bustalne,d 1i:J'jury. be was entitled to recover. nnless in attempting to cross he had assumed a rilk of getting caught between, the two I!ll<'ltlons which was known to him at thetimc, and waS B,uch as a prudent man obviOUsly would not have taken, was proper. and not erroneou8. from tbe use of tbe wO'rd "reckless," as applied to plaintiff's conduct, the context showing the COUrt. 1;ol;1ave used it as synonYIllQus with
AT
' , .
United ,States Cpurt in the Indi,an Territory. '. , jby(1,eorgeW. Powell agtlinst George A.,Eddy and H. C. Cross, as receivers of the Missouri. Kansaa & Texas Railway Company, to r,ecover{orpers\lnl,il VerdIct and juugmep:t Jorplaintitr. DeJendants brought . .... ..,
In
&15 , STATEMENT BY
THAYER,
DISTRlcrr
juDGE.
This is a suit for personal injuries which were sustained by the defendant iIi error at the town of Atoka, in the Indian Territory, on the 29th day of November, 1890. The evidence introduced by the defendant who wastlie plaintiff in the lower court, tended to show that as he was driving along a public street of the toWI:\, and had reached a point where the street crosses the track of the Missouri, Kansas & Texas Railway Company, he found the crossing of the main track partially obstructed by one of the receivers'freight traius, which had halted temporarily at the station. The train had been cutin two.at the crossing, leaving a space of about eight feet· between· the rear and the front sections of the train, through which vehicles and pedestrians could pass. The testimony further tended to show that, when he reached the cross-. ing, he first stopped; intending towait until the two sections of the tram had united, and had mm,"ed past the station; but that he was directed 01' signaled to cross the track by a brakeman or conductor attached to the train, who was· standing at or near the crossing, and that he tempted to cross in compliance with such directions. Whilepasaing over the track, the engineer suddenly. backed the front section of the train, for the purpose of coupling to the rear section. The wagon in which the defendant in error was riding was caught between the two sections of the train, and overturned. The defendant in error was thrown violently the ground, and sustained injuries which disabled him for some time. The testimony in behalf of the plaintiffs. in error tended to Show that the defendant in error was not directed to cross the track. before the train had belln coupled, hut that in making such attempt be acted of his own volition and negligently. There was a verdict in favor of the defendant in error mthe sum of $350. Olifford L. Jackson, for plaintiffs in error. R: Satlls and N. B. Mauy; for defendant in error. Before CALDWELL, Circuit Judge, and SHmAS arid THAYER, Distriet .
to
THAYER, District Judge,Cdjf.er stating the case Q.8above.) It is claimed that the judgment of the lower court walland is erroneous, because the summons did not set forth the nature of the cause of action; because the summons was served on a station agent of the receivers, and not on the receivers personallYjand also because the lower court permitted. an amended complaint to be filed, anq erroneously refus.ed to strike it froni tlie·files on the motion of the plaintiffs in error. The questions covered by the first and second of these assignments are disposed of adversely to the plaintiffs in error by our decision in Railway 00. v. James, 48 Fed. ftep.148, and by our recent decision in the case of Eddy v. Lafayette, 49 fed. Rep. 807, wherein the same objections to the process and mode . . . of service are fully con.sidered and ove.rruled. The'third assignment of error, above mentioned,is also without merit. The plaintiff in the lower court first filed a complaint entitled "Geo. w.
816
FEDERAL REPORTER,
vol. 4.9.
PoweU vs. Goo. A. Eddy and H. a. Cross, ReceiVt'!l'8," etc., the opening paragraph of which was as follows: .. George W.Powell, a citizen of the United States. residing fn·the Indian Territory, second judicial division, complains of the defendants, George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas :&ailrpad Company, a corporation organizell ·under the laws of the United doing business in the second division of the United court for the. Indian. ' Territory, and for cause of action alleges," etc. . . ,.
The lower court held; ail it seems, that the original complaint stated a case against the l'eceivers in an individual, and not in an official, capacity, because it was 'Dot explicitly stated that the suit was brought againstthemas receivers; whereupon the plaintiff below.asked and obtained; leave to file an amended complaint. The original and amended complaint bountedupon the .same act or transaction. We can scarcely oou<kiv-El of a case in whioh it would be more appropriatf.1 to grant leave toamend{0l' a greater abuse of discretion to refuse such lel\ve. It is obvious that the pleader who drew the original complaint intended to sue the receivers in an official· capacity. If there was ap.y defElct in the pleadiQg,it was merely a defect in Iorm which the statute concerning amendments was intended to remedy· by the rec. We pass to the consideration of another question ord, wMch' is more deserving of notice. The pivotaUasues in the lower court (andhoth were for the jury) were as follows: Was .the defendant in error directed or signaled by ·any one connected with the ment of the train to crOlIS the track, and, if so, wItS he gujlty of contributory'negligence in obeying .the signal or direction.? With respect to these. issl1es the charged the jury, in the form of two separate rainstructions,as follows: quests (1) "The court instructs the jury that if you shOUld Ond that the plaintiff was upon the street or highway at the crossing of def.endants' railway track 'fIigllaled or. advised by the conductor of the in question, and trl\in, a,r tlle "g{1nt or servant ,of defendall,ts, to cross over said track, then he, the plaintiff, had a right to presume that it was safe for him to do so, unless you shall further believe that plaintiff, in 80 acting upon such signal or ad. vice of defendants' c.ondnctor, agent, or servant, was exposing himself to a. danger which was sMh· that a . person of ordinary intelligence and prudence would not have acted upon in similar circumstances." (2) .4'The CP\ll't tho,jury that while the had the right to occupy the the highway over its track. ioth.e moving of cars in Qt 1:lusiness·, and to casually stop their trains upon such crosstlie ing, providell' such trains Were not suffered thereon a needless or unreasonable· time, yet the defendants owed a duty to the plaintiff, and all other persons desiring to cross suc·h highway, to act with proper care and caution in ,the moving of their trains over said crQl;lsing or highway; and if the jury shall believe. fl'oIQ the evidence that the crossing was cut, and the plaintiff, with his wagonandteam.desir,ing to cross said highway; had stopped his before croasing. awaiting orders or instructions from· defendants' agents or servants, and that while tbus waiting he was expressly or impliedly invited 01" instructed by the conductor or agent of the defendants to drive on and cross said highway, then he had a right to presume that it was safe for him to do so; and if in so doing he was injured tb,e defendants are liable, u.nless.
or
ALBRIGHT 17. M'TIGHB.
817
the obeyIng of such Instruction was opposed to common prodence, so 8S to make it an obvious act of recklessness or folly. "
It is contended that the giving of these requests was error. We have no doubt of the propriety of the first instruction. The defendant in er· ror was certainly not guilty of contributory negligence in the track pursuant to the direction of a person who was connected with the management of the train, and presumptively knew whether it was about to mov.e,unless he was himself aware of some danger, such as would have deterred a man of ordinary prudence from going forward in obe:. dience totbe signal. The plaintiffs in error requested the court to charge the jury in substantially the same language. If the word "recklessness," found in the last clause of the second instruction, was employed, as it frequently is, merely as a synonym for" carelessness" or "negligence," no fault can well be found with the second direction. That it was intended to be admits, we think, of no doubt. Both directions arepredicated on the same hypothesis,-tbat the plaintiff had been directed to proceed over the crossing; and it will not be presumed that the court intended'to prescribe a different rule of law applicable to the same. state of It is also quite clear from other parts of tbe charge that the was used as a synonym for "carelessness." On, at word least, fOJlrdi1ferent occasions in tbe course of the charge, the form of was changed, ev.idently without any intent to vary the rule of law applicable to the issue of contributory negligence. Taken as a whole, therefore, we think the jury must have understood the charge as stating the following proposition: That if the plaintiff had been directed by the conductor or brakeman to cross the track, contrary to his previous intention, and in so doing he had sustained injury, then he was to recover, unless in attempting to cross he had assumed a risk of getting caught between the two sections of the train, which was known to .him at the time, and was such a risk as a prudent man obvi. ously. would not have taken. A careful consideration of the record satlsfies us that this was a correct statement of th- law applicable to the testimony; and we accordingly affirm the judgment
ALBRIGHT 17. MoTIGHE (Ofn'cuit OOUrt, W. D. Tennessee.
et ale
February 111, 1899.)
L
TORT-F'EUORs-JOINT AND SEVERAL LIABILITY.
In· an action for malicious prosecution against several defendants, a recovery may be hlW against one or more or all, as their liability is joint and several, and plaintiff J:l!.ight have brought separate actions, though he could have but a single satisfaction, except as to costs.
I. 'SUrE-NEW TRIAL-MOTION FOR BY ONE DEFENDANT. !nsuchan ,action, where plaintiff has obtained a general verdict against all the defendants, who subsequently move for a new trial, the court bas the undoubted power, upon a proper case made, to grant the motion for new trial as to one oftheJ» and overrule it as to the others.
vA9F.no.10-52