862
FEDERAL Rll:PORTER,
vol. 52.
milling ,price. findings are conin error upon their own version of the cOnclusive against: tract. ,,' , These views rElQUelliti unnecessary to further disC11SS the exceptions to the givingand,l:efqsing.pf, instructions. The exceptions relating to the admissjon of May 12, 1,884, written by the defendants in error 'J.4tnesboro before the defen,d,a,nts purchased the bank, are unavailing,; bec.a,use the letter was from the consideration of the jury, and was ,pot considered by the court. There is an exceptiQn:to the adn:lissiOIil, of parol proof of the contents of the written paper or instrument .given by Mr. Wall to the railroad company. relating to whea.t delivered byJhe railroad company to .the milling company .without the written Order Qf the,plaintiffs inerrorj'. QU t the proper foundaproof of,tbe of the paper was tion for the admissiol}of lw,Q., by ahowingthat thePape;r was lost, Alnd could not :ge found after Uiligent search in the office and}Sllaces where it ought to be, alld where there reas(>nto suppose it could be .found. .A.eepamte examination of the ,uuln,erousother exceptions to the ruling,of the court i,na4tuitting rejecting evidence is not necl3ssary, as none' of themarJ) of any general importance. They have examined very and w.e arE:! satisfied that none of them have any ruerit.Findingno error in the record, the judgr,nent below is affirmed. j'
NEWPORT NEWS
& M. V.Co. .". HOWE.
(CCrcu:U; Court Qf.appeaZs, S1Zth Circuit. October 4, 1892.)
A brakeman who ill,lIent;bythe conductor;from the rear'porj;Jon of a parted tl'8in to signal the forward portion, of which the .engineer, is, br. the l-ules of the ColtJpatty, the conductOr, ill a fellow servant of the engineer, and cannot recover 'from the companyfor·an injury caused py:the engineer's negligence. BaHroad ,Co. v· .and1'cws. fiO Fed. :J;tep. 728, 1 C. A. 636, followed. 9. SAME-RULE OF DECISION iN FEDERAL CotJRTS":':'STATE DECISIONS. In the absence of statutes, the decision of the courts of Kentucky that a brakeman and. ,an eUginellr are not fellow servants, so as to prevent, rec,overy from the company 'by 'brakeman for the engineer's neglij;(ence, since it is) a ,construction of the;genElral 'contract of service, and'nota rule of property. does not'bind federal when construingtltjl,coxg,mon law o,f ,Kentucky. . ': " An engineer 'bacll:at night in seat-oh of oars broken from bia train owes DOll.uty to keep a sharp,I.oQ!l:OlJli with respect to a brakllxg,an who,bei!1g sent forward to l1ign!'l him ha,s gone to sleep upon the, track; and the cOJIlpany is only chargeab,le,with, ntlgi!gence" ool:/stitutin,,g,prOlCimate cause incase of want of care by the,engineer after discov:eriult the . .. CAUSE. ' " , '
tMASTBRAND
SERVANTS-ENGll'tEER AND BRAKEMAN.
In Error to the ' .".
.United States for the District of
NEWPORT NgWS" &: M. V. CO. t1. HOWE.
363
At Law. Action by DavidC:nowe against the Newport News & Mississippi Valley qompany to .recover damages for personal injuries. Verdict'and judgment for plaintiff. Defendant brings error. Reversed. Statement by TAFT, Circuit Judge: "', This was a writ of error to reverSe a judgment for $5,825, in favor of David a:owe against the Newport News & Mississippi Vaney Company. The defendant below was a corporation of the state of Connecticut, operating a railroad in Kentucky, and' Howe was a brakeman in its employ. Howe based his right of action on the loss of his arm, caused, as he alleged, by the carelessness of an engineer of the company in operating an engine. The facts are substantially as follows: Howe was a brakeman on a freight train running east from Lexington at night. Adrawbar of one of the gondola coal cars, of which the train was made up,pulled out, and the train parted. The engine and the several cars in front of the point of breaking ran on. Hughes, the conductor, and Howe were on the caboose at the rear end of the train. On the forward part were the rest of the train crew, consisting of the engineer, Kirsch, the fireman,McGuire, and a brakeman, Mann. By the rules of the company applicable to such an emergency, the engineer became the conductor of the forward portion of the train', and the trainmen thereon were made subject to his orders. As soon as the cdnduCtor, Hughes, discovered the accident, he sent forward Howe with a lantern to signal the engine When it should return, and to give the engineer information as to the whereahouts'of the rear cars. Howe went forward s!l\;eral hundred yards. sat down on the end of a tie; put his light down near him, and went to sleep, with his arm thrown over the rail. The engineer, after running about miles, discovered the parting,side-tracked the cars still attached, and then started his engine and tender back to takeup the rest of the train. He had with him on the engine the fireman McGuire and thebrakemail Mann. The three were the only witnesses of what occurred at the time of the accident. Mann testified on behalf of the plaintiff that, when within a distance of between 100 and 200 feet from the point where Howe lay, he saw the reflection of the light frol1lHowe's lamp. The night waS very dark, and it was raining slightly. As he saw the light, he called to the engineer: "Look out I there they are;" meaning the rear portion of the train. He looked again, and saw on the other side of 'the track from him an object which he took to be the signaling brakeman,waiting to step on the engine. He crossed to the engineer's side, and then saw a prostrate man only 10 or 15 feet from the approaching engine. He whistled through his teeth, giving what is known as the "steady signal" for stopping at once. Theengineerapplied the air brakes, reversed his lever, and di4 all he could to stOp. Although he suoceeded in bringing the engine to a standstill in 20 feet, the back wheel of the· tender had passed over Howe's arm, and cut it off. McGuire testified that the engineer did not look out of the cab window, and thatwithollt doing so he could not get a clear view of the track; that the track was straight for 150 yards to where Howe lay,and that
364
FEDERAL QPORTER,
if the had looked out of the cab window he could have seen then have stopped the engine in time to avoid the acHowe, and cident. The engineer's evidence contradicted that of Mann.and McGuire. A motion to direct a verdict for the defendant on this state of the facts and the evidence,was denied by the court below. Error is assigned for . such denial. W. A. &: Sudduth, on the brief,) for plaintiff in error. lJfatt. O'Doughct;ty, (Thos.F. Hargis, on the brief,) for defendant in error. :Before BROWll, Circuit Justice, and JACKSON and TAFT, Circuit Judges. Circuit Judge, (after stating the facts.) We think the motion to (Hreet a verdict for defendant should have been granted, and for two reaFirst, because the engineer, who, it is claimed, caused the acciby his was a fellow servant of the plaintiff below; and, BfCrmd, because the negligence of the plaintiff con.tributed to cause the inj.qry of which he complains. . . ':.first. The principle that among the risks incident to the business of t.b,eJnaster which the servant, by his implied contract of service, assumes, llf,ethose ari&ing from the negligence of his fellow servants, provided tney have been with due prudence and care, was first satise:x;pounded in the leading caSl;l of Farwell v. Ra1:lroad Co., 4 !\{et(l' (Mass.) 49" by Chief Justice SHAW. It has been fully recognized ap,d; followed by the supreme court of the United States. In Randall v. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, it was held that the defendant railroad company was not resp0l1sible to a brakeman in its Qmploy, wllo, while his own engine and train, was struck by an9ther engine of the defendant, negligently operated' by its engineer, becaus.e the bra1feman and the, engineer were fellow servants, working in pursuance of a common object, together at the tp}Vit, the of trllins. An e:x;ception to the general rule was first suggested, perhaps, by the decision of the case of Stevens v. Railroad Co., 20 ,ohio, 415,and afterwllrds fully confirmed in the case of Railroad Co. y, Keary, 3 Ohio St. 201. This exception has been recognized by the supreme court of the United States in the case of Railroad Co. v. Ross, U2U. S. 377;.5 Sup. Ct. Rep. 184,. where it was held that, when an epgineer's injury resulted frpm the negligence of the conductor of his condu(ltor wtls the representative of the company, train, the app. ,his negligenqe was its J:?egligence. The counsel for the defendant rely on in the Ross Case to take the at bar out o.f the rule. . , decjdeqby thif;l CQurt at the last term, in the case of Jlailroad Cp. Fed. 728, 1 C. C. A. 636, that the. faqt ,that the negligent employe was of a higher grade than the in,servant did not prevent ,their being, fellow servants, within the geneJ;alrple. Ul1lef;lS it also appeared that the injured servant was actually to the orders ofthellegligent employe w.hen the accident happened. It was accordingly held that a brakeman on one train, who was c
NEWPORT NEWS" M. V. 00. ,. HOWE.
860'
lUlled by the negligence of a conductor of a colliding train, was a fellow, servant of such conductor, and that the brakeman's representatives had, therefore no cause of action against the railroad company. It was held that the facts brought the case within the RandaU Case, rather than the R088 caSe, and that it was error in the court below to direct a verdict for the plaintiff. We see no reason to question the correctness of the conclusion or the reRsoning of the court in the Andrews Que, and it remains only to apply them to the case at bar. The 'breaking of the train, under the rules of the company, made the engineer the pro tempore conductor of that part which still remained attacQed to the engine, and required the trainmen to act accordingly. With reference to the fireman, McGuire, and the head brakeman, Mann, th,erefore, the engineer a superior officer, entitled to their obedienoe;and if, while the train was in two parts, the engineer's negligence had caused injury to either of them, he would have had his action agairistthecompany under the doctrine of the R088 Case, already referred to: the plaintiff here was in the rear portion of the train, and subject ,to the order of the conductor, Hughes. In obedience to Hugbes' order, he went, forward to signal ,the returning engine, arid when the accident happened, he should have beep discharging a duty assigned him by Hughes. Howe was noli then acting under, nor was he subject to, the engineer's orders,. The case is exactly like the Andrews Que, where ,the brakeman of one, train was injured by the negligence of the conductor of another. Howe and the engineer were fellow servants, and the company is not liable to Howe, therefore, for the engineer'snegligence. It iii! sqggested that. as the accident occurred in Kentucky, the decisions,ofthe court of aI,>pea\s of Kentucky should be controlling. It is held by that cOllrt thRt .a brakeman and an engineer are not fellow ants, so as to prevent liability of the company to the brakeman for the negligence of the engineer. Railroad Co. v. Brook's Adm'r, 83 Ky. 131; Railroad Co. v. Moore, Id. 677. ,Were the question one of local law or usage, the decision of which h,lid become a rule of property in the state, it would be our drity to regard the judgments of the Kentucky court of aPPeals as authoritative and final. But the question who are fellow servants, within the ,rule under consideration, is one of the interpretation and construction of a general coutract of service according to the comm.on law of Kentucky. It is a question of general jurisprudence, and is not local. A decision upon it could not, in its nature, have ,become a rule. of property. Upon questions of the general common law of a state, the courts of the United States, exercising a, jurisdiction concurrent with that of the state courts, are vested with' the constitutional power of rendering and enforcing their independent judgment as to what the law is, even iftpis judgment is not in accord with the conclusions of the ultimate tribunal ofthest8te whose law they are administering. supreme courtof the United States, speakIng by Mr. STORY, laid down the principle in the case of
't9;,and'at:neaNy Cilve:rytennsince, 01 the authorities are .collated 0Pillio'I1"of BRADLElY in.,the, case, of Burgess v. 8eligmaml 1!07U: Ct. Rep. 10.. ' Mi'. Justice MA,TTilEwstitil:<!isoussing,the'subjem lin Smith vJAlabama,. 1,24. U. S. 465, 8 ':5614, said at pllge478, 124U.S., arid page 569,8 Sup. Ot. Rep;:t'.."'. \. ,'.''' .' ,. ..' "There is no common law 'or tlieUnited 8tatesin the sense ,of a national Cl1stoffiil:f)'laWi; distinct fromt13e'com!mon la:w, of England as adopted by the each for !IS its lqelll law. and subject to such aJprovided.l:li itspWJl, ! . Whe(Zton v. Peters, 8 Pet. 591., A in of ,}v hat, that law is may be different in court altha United Statesftbm that which 'prevails in the judicial triblliulols of a particular 'Thlsans¢lJ from the citcuillstancethat the courts 0'1' the U'nitt>(]I Stlltes; incases w.ithi·rr their jurisdiction, where they are called upon to adIhiRlstertlie law ofi the state in Which they sit, or by wbich the transactionI8,goVe.rued, though concurrent, j urisdictioll, and ,are:rNl,ljred tile law,according to their own judgment.;, .. i'l;'hi,s ,is ilillstrllted by tile caseo( Railroqij' 00. v. Lockwood, 17 Wl\1:I: 35t, wherllthe NewYork in reflirene.e'to tliE(lial>i1i1;y :0£. comm'on for negligence rE.'ceived a different IMerprtitatidn f'roM that 'placed upon it by ,the judicial' trib,unals of the state; but the law 'aslapplif>Awas;noneitbelesB the law of the state."
Swift'll'
a
hp Mthin ': the' would seem to be'nofiess a questidtl' of general common hiwthan the question forhids a common darrier from stipulating against liilbi1ityfdt liiir oWn negligem:ie,""'-tbe point'involved ih 'Railroad Co. v; Lockwood, by Mr. Justice MATTH,EWS. 10 Bucher v. Cheshire Railroad Co.,)25U. S.'555:;-8Sup, Ct. statute punishing one .on SUfldtty' by a fi.ne .'?f actiO?' by one· :who,wb)le traveling 111 vlOlatlOn of, by' thenegliger,ce' of the defendant railroad .0ymdtl1ata long line ,of decision!l by the !>upreme COUI',t of assach sustainillg tbe this the local law, pincting.or;l t federfilcourts.But th'ere tne'state. statute gave the :which is not in'the case at bar. In Ranilallv. $autoadCo;II09 u.s. 478,3 Sup. Ct. Rep. 322, the bburt de·6linM,t()iweigh the don'flicting'views Of the' various. state courts the lilllHa:tibnsoqbe rule, but'decidM it as one of' juris'ortidence.· The' sacia is trlle of the deCision of this court in
'Me .
cO!Pf,"
of Rail¥oatl '00: 4ndr&ws, 8upra. " .' '. II1'Houghv."liailroad 00.,100 the quesHon was whether the .for liability. und.er'thefeJ!ow-servant rule, !ecelVed m Taias, and Mr. Justlce.HuLAN spoke for the . . . . ...,the 9WS:' '. ,r.· . "',·.·.c .e.' '. J.o "
?9U.· .. subject, as . . . c'
effiec.t ..
of st.at·. ... '.de'. . . c.il!io.ns upon the
been determhied in'the Rupreme court bfTexas, it urged, t,be court below. After a bbosecaaes, we are' of opinIOn that they do not necessarily conflict with the conclullions we have reached. Be
NEWPORTNEW8& M. V. ·CO. 11. ROWE.
367.
this as it may, the questions before us, in the absence of statutory regulations by the state in w,hich th.e .cause of action arose, depend upon principles of we are not reqJ,lired to follow th(l degeneral law, and in cisions aithe state courts." .
The decision in the:RandaU Oas6,atldthe subsequent one in the case of Railwary Co. v. ROBB, 112 U.S. 377, 5 Sup. Ct. Rep. 184, must, then, control United States courts in considering similar cases in states where the question is, ,one of common law, and is not controlled by statute. There is no statute in Kentucky' which affects the subject. We are bound, therefore, to hold: that by the common law of that state, under the circumstances as admitted by the plaintiff below, he and the engineer, Kirsch; were fellow servantB,.and that the company was not liable for an injuryio hhn caused by Kirsch's negligence. Seco'1Ul. Weare of the opinion that, on the evidence adduced, it was the duty of the court below to have directed a verdict for the defendant on the ground. of the plaintiff's contributory negligence. In order that a defendant shall be exoner.ated from .liability by the plaintiff's negli. genoe, ,itmuat 'appear that 'it was the proximate cause of the accident. It need not be the sole proximate cause. It is enough if it concurs with defendant13.negligence to produce the injury. Plaintiff admits that, .with the knowledge that an engine was approaching, on a very dlll1'k night,he lay down with his arm over the rail and went to sleep. Grosser negligence, fnorecertain to result in injury, can hardly be suggested. Ris charged that the.engirieer was negligent in not sending out·before him. his brakeman, in not signaling his return by whistling as often as he should, and in running at a higber speed than four miles an all, contrary to. the. rules of the company. There was evidence tending to show such negligence, 'but it all was plainly concurrent.with that of the plaintiff, and therefore constitutes no ground. for recovery.. The counsel for the plaintiff helowrely, however, on the conduct of the engineerst the time. of .the .accidellt in failin/.; to stop the engine. before Howe was run over, as bringing the case within the so-called exception to the general rule of contributory negligence, to which plaintiff's negligence is no defense, if it appears that by the exercise of due care the defendant might have avoided the consequences of plaintiff's negligence. The exception obviously refers only to those cases where the negligence of the plaintiff is not a proximate cause of his injury, because, after the fact of: plaintiff's negligence, and with that as a circumstance or condition of the situation, defendant might then by exerercise of due care avoid the injury. In such cases, defendant's negligence in the chain of causes leading to the accident intervenes between plaintifFs and the injury, and is, in law, the sole ptoximate cause. Was tbere any'snbstantial evidence which the court might-have submitted to the jury for the application of this principle? It does not ap. .pear from the: evidence ofany witness that the engineer .saw Ho,""eupon .the track until he received from Mann the: "steady " to stop. Me.Guire, thetireman, testified that on account oithe tender's obstruc!ting
368
J'EDEl;lAL REPORTEB,
his view, the engineer codd not have seen Howe upon the track unless he had looked out of the cab window, and that he did Mtdo that. The engineer testified that he did not see Howe until ,he was signaled to stop, and Mann testified to nothing from which the contrary can be inferred. i !Mann, the witness upon whose evidence the plaintiff's case chiefly rests, admitted on the, stand that, after he gave the signal to stop, It follows the enginoordid all that could be done to stop that waeno evidence to show any want of care on the engineer's part after he'}Qecame:aware of the peril to which Howe had exposed himself. The theory of counsel for the plaintiff belowia that, when Mann saw therefledtion of Howe's:light,and called to the engineer, "Look outl are," this was notice to the engineer of Howe's periloUs situation. We cannot agree with this view. Manll testified that he Illean't .bythisremark to indiaate to the engineer that they were approaching the rear portion of the train, and the evidence of the engineer is that hesD bnder\3tood it.. Mann:stated that when' he first saw the light, the engine was '.between 100 arid ,200 feet from it; that, after calling to the engineer, htdooked again, and saw in the darkness object which he supposed ,to :be: the formofIa brakeman waiting to get on the engine. It was not uritil hecrosl1ed:the gangway of the engine, and the object that he saw itwas a prostrate man. Now,there in, what Mann said to lead the engineer to, think that anybodyiwRs in danger 'of being run over. Mann did not think so.' Why.:should the engineer have thought so? The peril which the to use dueca:re to avoid, as' charged by the plaintiff, was that of Jounningover a sleeping Neither the nearness of the,i:>ther light w61Uld or could suggest the pospa'tttof the: thiin nor sihility Mench a: peril to the:epgineer, and,he had no other facts;upon wiliich. to exercise his reasoning faculties. It would seem,' ther,efore, that there was no evidence tending to:show a want of due. care on the partoftheengineer in stopping the engine after he became aware of any fa<lt or facts ifirom which he eould reasonably infer Howe's peril. Upol1,t,lire point, howeverjwhether, if the engineer had looked out, he could! have seen Howe's perilous position in time to stop the engine before striking him, the evidence is 'Conflicting, and, iUhe pointis material to the case, it should have been submitted to the jury. It remains to inquire, therefore, whether a failure of the engineer to see Howe on thE! track in time to avoid the accident, when by looking out he might have Slilell him, can be said,tobea legal cause of the accident. Usa, ill is the sole proximate cause, would render the company liable. 'When a man lies clown to sleep'ripon a railroad track at night, with full :kn'Qwledge that a ,train is soon to pass that way , doeshathereby impose upon the engineer the duty with respect to him of keeping a lookout,ahd .of discovering' him upon the track? It. is true that the epgineer oweaiit totpe on the train, and to persons lawfully upon 'the:track,to,keep a lookout, to prevent injury to them. But that is because danger to such persons, is probable, and should be looked for, to be avoided. One is bound to use one's own so, as not
NEWPORT NEWS & M. V. CO. V. HOWE.
369
to injure another. This duty, of course, is comme1'J.surate with the reasonable probability that any particular use of one's own will injure another. Now there is no probability that a man will be asleep upon the railroad track. While, therefore, an engineer who fails to keep a sharp lookout upon the track is wanting in due care to passengers and lawful travelers, because of the probability of to each from such fallure, such conduct is not a want of due care with respect to a man asleepuJ;>on the track, because of the upon which the engineerhas a right to rely, that no one would be so grossly negligent in courting death. As there was no duty' imposed upon the engineer to.lQok out for the 'sleeping man, there was no negligence in his failingtosee'Howe.lt would follow that the engineer's failing to learn. the peril earlier was not a proximate cause of Howe's injury. As aPl?lied to a case like, the present, the'i'efore,we, believe the rule counsel for plaintiff belCH" shquld be construed to mean relied OIl, that of the plaintiff be ,no defense, if the defendant, after he knew the peril ofJhe plaintiff, didno't use due care to avoid, This 'view, seems to be sustained by authority and byHseveral eminent te;KtwriterS;'2Thomp. Neg. p. 1157; Cooley, Torts, § 674; O'Keefe v. Railroad C,o.,32 Iowa, 467; YarnaU v. Railroad (,'0.,75 Mo. 575j Denman v; ' R,d,uroad Co., 26 Minn. 357,4 N. W. 605j Button v. road, Co., 1S N. Y, 248, 259: , " " ' , In Coaating Co. v. Tolscm" 139 U. S. 551, 11 Sup. Ct., Rep. 633, t11e plaintiff's foot was crushed between the timbers ofa wharf by the defendant's'steamer's striking the wharf with undue force. The defense W$S plaintiff's contributory negligence. The cobrttold the jury that, if tbe defendant's agents might have avoided the consequence of plaintiff's neglig/ilnceby due <::are, it was no defense. To tlie objection that this rule was 'not-applicable to the circumstances, the Sllpreme court answered that it was, because there was evidence to shQW that the defendant's. agents knew where the plaintiff was standing, and tbat undue force in striking the wharf would result in his injury. This would seem to show t,hat, i,n the opinion of the !Supreme court, knowledge of the plaintiff's was required to make the rule applicable. ' In O'Keefe v. Railroad Co.· Sttpra, a man lay down at night on the defendant's track in a state of intoxication. He was there run over by an engine which had no headlight. The court charged the jury that he could not, under these circumstances, recover, "unle$s they found that defendant or it,S agents had knowledge that he was thus lying, in time to prevent the accident, 01' could have known, with the exercise of ordinary caution." The judgment of pill-intiff was reversed on the ground that the italicized clause was error. In Yarnarl v. Railroad, Co., supra, the plaintiff's intestate lay intoxicated upon the track, and itwlls held that the railw;ay company: could as occurred after only be: held for such negligence causing the its agents became aware of plaintiff's exposed condition. In Button v. Railroad Co., supra, plaintiff lay down at night in a state of intoxication on a street car track, and was run over. The court bev.52F.noA-24
wm
negligence de()eased direct1Y' contributed,to the.injury, and l\ for ith$!plai'ntiff. :, Thecasewaa reversed, HARRIS, J, \ sa:yiag of the plaintiff',: <, " /.:; li . ";)' ) i" as be 1il'llst'be presumed: to have been,qercllllrted his own baving codestruction. ,. Under tbe",ch:cumstall¢es,,· :must be to death. . jury could ,be .P1ade ito lleJ.ieve that, l!>e,r delleased lYas pefendan ts by baveavoided': the'fatal result, ,:.theywertltlot Uaple." !, ":L\ ',: " I, i ., -: ,,In y. Railroaq Co.,. .m,Wia, theplaintHf went to on the seyerely, injUred by ap,sshigtrairi. " In holdjllg plainti1;f c9:qld, f4;lCOv er, ,the, aupreme. court of M,innesota used the ',' ,'.') ., i the p\U't q'pon the train, arguesthllt the to estilolisp,is,I'lVidence going tpe track,at'the accident. andfora,lollg distanCe t)l) sUch 'place,; was levelandstraigbt; 'so no larger than'aroan'wbat Cduld'belieen for four or andthat,therefore lihe elU\)loyes·,werenegligentin.ot observing the defendant. In ,our oplnion;:,bhi$:je: OJ) Vi hate,:e;r:pf, nl'ljJUgelicelilD,the of the defend. The, plainti,ff hi\d no rightWblltev;er ,to sit or lie do\yn u:pqp,the to it t9,bt> a pl,\Ssing train, 'ana go to sleep. ' 'If 116 saw fit to d6lid;JjetooktbElliSI} upon llimself. Tlle owed hhp nq excep.t, tl18t of exerCising due diligence· to avbldhijurlllg bim aftefdfscov'eringlbat he was there.; ff the defendant's emplo1e.'ln"charge 'oflthe'train had neglected to watclt the, traek" and SQ had failed ltoobserv.e O}:jIlt4!llct1on wbich the trllln! .from the !3S u\111's8 sO,lllr e.,xc, "',ll,'PP,·.'e, .·,. IDig" , I he, on.,er,1.',1 W..lilCh t, he t would be ia,ble, to negllgwice. the defen.dant owed tha, i'llssenger a duty, the neglect ,'of WhICh had occaS'loned the iOJur,". Bilt.' fori the 'reasons 'plaintiff occupieaf a position entirely differellHrottl.'tnatofa 'pa8!8nger .'f 'I.' ',i The,fotegoirig is, in'ou'ropinion,a'col'rect statement 'Of the law i11g the present case.. We are,' aware that there are many cases, which are colleetedin'Sheartnan & Redfield's work on Negligence, (4th Ed.§ 99, note/)in which the rule istlius expressed: The defendant isliabIe, in' of negligehce,if, after he or ought by due care{iY peril, he might by, the use of due care avoid the ooWsequences ofplainti!r's negligence, atid' does not do so. The due care discoveringplahltiff'anegligence depends· upon the rela(I)n'!ofitheparties. In; a eaSe like the present, where, in our view, Nl. nbduty on the part ofdefendantrodiscover plaintiff's IClatlse adds tiothing to the effect of the rule,but a dutywhich, does not eXist.. . :' ., : The, 'the ,court'below should di. ; 'verdict 'for!f.he 'defendant, Rnd' therefusaltd do so 'was error ieqili'te'&! 'us tti revel'sethe and order a new trial. . I,
i.
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FEDERAL BEPOR'rER,
sMa to,the jury that the defendants were liable unless
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ST. LOUIS, I. M. ,&s, KY. cd. ".
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371
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!fouls, I. If.·& S.Ry.Co. v. NEEDHAM. (Oircuit Court of Appeals, Eighth Circuit.
October 3,
Ko.106.
1.
Dl!IATlI BY WRONGl'tl'L AOT-WROMAY SUE-"HEJRS AT LAW" DEPINED.
Tile widow and all other persons entitled under the Arkansas statutes to share in ,the distribution of. the personal estate of persons dying intestate are "heirs at law," within the meaning of Mansf. Dig. Ark. §§ 5225, 5226, giving a right of action to the heirs at law (if there be no personal representatives) of any person whose death is caused by the wrongful act, neglect, or default of another. Manst. Dig. Ark. §§ 6225, 6226, give only one right of action against the Jlerson or corporation whose. wrongful act, neglect. or default causes the death of another; and when the widow brings such action she must join all persons having an interest in the subject thereof, including a half-brother, Who is entitled to a share of the damages recovered, though he suffered no direct pecuniary loss. This rule is not changed by se!ltioll; 4988, which provides that every action must be brought in the name of the real paJ;ty in interest.
2. SAME-NEl:lilsSARY PARTms.
8. SUU!l'--MllIA,STJRB OF DAMAGllIS-INsTRUOTJONS.
In an action by a widow for wrongful death of her husband uuder Mansf. Dig. Ark. §§,0226, 5226, it 'is error to positively instruct the jury. to measure the plain. tiff's damages by a mathematical calculation based upon the yielding power of money when invested in an annUity; for, while it is proper for the jury to consider ,this ,method of investment. they should not be confined thereto, but may consider other safe investments, such as government bonds, real-estate mortgages. etc., alid in caSe 'they find diffiCUlty in reaching a conclusion 'by any mathematical calculation, they are authorized to estimate the damages by thelr own good sense and sound judgment. "
4. SAME.
his death, and that his wages up to that time had been entire}y consumed in the expeDsesof his household, it'was error to ch'arge that, in case t.he jury believed the widow's expectancy of life was· greater than her hU'3band's, they should add to the amount required to purchase the ,annuity tbe present value of any property she would probably have received,'l'r6m her husband as dower if he had not bee'u 'killed. for the .realization of any: sum as dower depended on too many contingEln. cies, such as life and deatb."health, divorce, birth rearing of children. 6. SAME-EmwNEous IXSTJ\UOTIONS-O\TRATIVE CRARGE.'
It appearing that the widow was 00 years old and her husbllond 22 at the time of
Where, in an action for wrongfui death, the court, at plaintiff's request, erroneousW gives positive directions for .ascertaining tnedamages by certain OlatheJDatica\calculations, the error is not cured by the SUbsequent statement of the court 'on , Its own motion that in the end the whole matter of damages is left entirely to the sound judgment of the jury as to what is proper under ail the circumstances.
In Error to the Circuit Court of the United States for the Eastern D,istrict of Arkansas. . Action by Mrs. D. L. Needham against the St. Louis, Iron Mountain & Southern Railway Company to recover for the death of her husband. Verdict and judgment for plaintiff. Defendant brings error. Reversed. Statement by SANBORN, Circuit Judge: This is>a writ of error t(}reverse a judgment against the plaintiff in error fot its negligence in causing the death of thehusbund of the defendant in error, who was tbe 'plaintiff below, .aud will hereafter be so The statute of Arkansas under which ,this action was as follows: