ILLINOIS CENT.B. CO.V. FOLEY.
459
and regulations of any weighing association or inspectlori.bureau, as established by it, or as enforced by its omcers and agents, shall be OOBsidered bind· ing under the provblions of thb;, agreement, and any willful violation of them shall be subject to the penalties provided herein. "Art. 5. The expenses of the, association shall be borne by the several parties in such proportion as roay be fixed by the chairman. Any member not satisfied with the allotment so made may appeal to the asgoclation, which shall, at it'l first regular meeting thereafter, determine the matter, which may be done by a two· thirds vote of the members. "Art. 6. There shall be an executive committee of three members, to be elected by unanimous vote. The committee shall approve the appointment and salaries of necessary employes, except that of the chairman, and authorize all disbursements. All action of this committee shall be unanimous. "Art. 7. In case the managers of the lines parties hereto fail to agree upon anJ question arising lmder this agreement that shall be brought before the 3Ssociation, it shall be referred to an arbitration board, which shall consist of three members of the excuth'e board of the Interstate Commerce Railway Association: provided, however, that in case of arbitration in which the members of this association only are interested, they may, by, unanimous vote, substitute a special board. "Art. 8. This agreement shall take effect April 1, 1889, subject thereafter to 30 days' notice of a desire on the part of any line to withdraw from or amend the same."
ILLINOIS CENT. R. CO.
'1.
FOLEY et aJ.
(Circuit Court of Appeals, Eiglith Circuit. December 6, 1892.) RAILROAD COMI'ANIES-NEGLIGENCE-DEFECTIVE PREMISES.
A shipper of cattle by rail, accompanied by a helper, went with them on the train to look after their needs while in transit, Ilccording to the custom and requirement of the railroad company. Learning that an animal was down in one of the forwai'd cars, the two men went forward at a station where the train stopped to water, (the ,lOnductor having told them t1.tat there would be time to 100R after the cattle if they hurried up;) and on reaching the cal' the shipper told the helper to go around in front of thn engine to the 'other side of the train, and hold up the lantern, while he himself got the animal up with his prod. 'l'he station was near a creek spanned by a bridge, and, when to water, the en",etine was some distance upon the bridge. The bridge carried the main track and a switch, ann was planked between the two tracks and between the rails, but on the outer side of the main track there was only a narrow footpath or shelf for the use of the employes in oiling engine. The night was very dark, mid the helper, after passing the front of the engine, stepped over the edge of tlle rail, and fell to the creek below. Shortly afterwards his employer was found beside him, dead. The depot platform extended nearly to the water tank, and all the buildings and facilities for busine'ss at the station were between the depot and the bridge; and, when trains going westward stopped to water, passengers were frequently required to get off on the opposite bide of the bridge, as the train would not stop again at the station. Held, in an a:3tion to recover for the death of the shipper, that on these facts the court properly refused to direct a verdict for the company, and submitted the case to the jury, with instructions that it was mainly a question whether the bridge was such a part of the depot grounds as that the shipper was entitled to use it for the purpose of looking after his cattle, and that the company was bound to see that proper planking and guard rails were maintained.
In Error to the Circuit Court of the United States for the Northern District of Iowa. Affirmed. Statement by OALDWELL, Oircuit Judge:
460
I'EDlllRAL REPORTER l
:
vol 53.
This IslUlllctton brought byM. J. Foley and Nora M. Ke1Jey. administrators of theElliltate of M. B. Kelley, 'against the I1linois Central Ra1lroad Company, to recover damages for the death of the intestate, M. B. Kelley, which it is al· leged was brought about by the negligence of the railroad company. On March 18, 1890, M. B. Kelley, the owner, delivered at Manson station, in TOWIl;. to the Illinois Oentral Railroad for transportation over its road to ChiGago, eight car loads of live stoclt. The train carrying this stock was \\'hat is known as a "special stock train," which runs through to Chicago witJI all convenient speed, and makes no stops except, for coal and water. Shippers of livestock are required, by a regulation of the railroad company, to take care, of their stock whlle in course of transportation, and for that purpose they,or,:their agents,are required to accompany the tl'ain that carries the stOCK; arid they are expeoted to look after and care for it when the train stopsfQr coal and water. The train hauling Kelley's stock consisted of 17 car,,, The wtal. length of the train, including the engine and tender, was about 65() and Kelley 1s. stock was in first 8 cars, counting from the tender;) Kelley, with a helper, Mulroney, was on the train to look after his stock. .,At Dubuque,a,steerin the car next to the engine was seen to be down. Between.S 'and:9 '.o'clock at·night the train reached Council Hill station, in Illinois, where freight traius going east cOillmoniy take water; and this train stQpped ,there,' in the accuStomed place, for. tbat purpose. The conductor told Kelley: the train would stop five minutes, and that he would have time to look after his cattle "if he hurried up;" and, just as the train stopped\ Kelley, with a prod and iantern, and his helper, with a stick, got off on the south side of the track, and hurried towards the head of the train to look after the steer that was down in the car next to the tender. 'l'he conductor saw them start, and lu\ew theil" business was to look: after the stock. When they got to the tront end of the car, next to the tender, Kelley gave the lantern to his helper;' al!id told him to go around on the other side of the car, and hold the light up so he could see the cattle. The helper took the lantern, and startl1{'1 to walk around 'lif frOnt of the engine, as directed, and what befell Wrn. is thus"tpld by himself: "Just as I got in front of the engine, it kind of started" and', j;JJ.e kind of went off, and I had the impre8Sion that the engiue w!ls llbOut· to I stopped. The light was in my hand. The thought camett! m.y mind, what would I do,-go back or forward; and, with· out giving ita thought, I stepped OVl'r the north rail. I saw nothing but black. I looking towards my feet. I took'one step, and I was in the air. The.nllxt r remember was seeing Mr. Kelley beside me, dead. I knew it was he, forsorne' reason or other. My recollection is, I was sitting in the water, his body a few feet from me. It must have been a headlight that gave me the' vIew. I do not know how long I was there. I was only con· scious a few seconds. Don't know when I was taken out. I remember of making a nOise,-a. klJid' of loud groan. The next I recollect I was lying on a(',()t in PassamOl:e's store. Before I fell, I could see nothing but just black. It looked bey<)nd the rall just like the rest of the place,-nothing but darkness. There was no rail or obstruction to prevent my going over. I passed a.cross tl:J.e traCk, nhead of tlle nose of the engine, a few feet. When I steppetl over the rail,' tllere was no' stfam, I hlid passed that. The headlight was there, but it didn't show me anything at inyfeet. The headlight struck about my shoulders, I should think. It did,not .enable me to see. Was holding lantern in rigl;lt hand, and hnda prod with rne. When Kelley said we would t::o to tlie 'h¢l.ul of the traiJi amI work' the conductor ,vas right there. After r left'.:M:r. Kelley, to go around the engine, I did not know, b3" touch, feeling, or Sight, when I fjtruck the bridge. I harl a pair of rubbers Lon. Mr. alilq ,rubbers. I s:;tW him put them on. When T saw Mr. Kelley hst, he wal;! attb.e back..of the tender, at the end of the head car. When he gave this direction, I turned right around and left him. I have no knowledge hdw Mr. Keney came around there,-only supposition." It appears from the evidenCe that there is a bridge runlling east and west, over a stream at. this. station, flnd that the front end of au 122 feet t-'ngin going east, \\henit Is taking water, extends 30 feet onto this bl'idg'c, ' from the west end thereof. The main track and switch {Jass ov'!r the bridge. which is planked between. the two tracks and between the rails, and there
waS
ILLINOIS CENT. R. CO. fl. FOLEY.
461
Is a narrow planking outside of the north ral1 of the main track, which extends about 30 feet from the west end of the bridge, and is used by the employes while oiling the engine; but there is no planking beyond this point on the out· side of the north rail of the main track, and no guard; and one passing aroWltl the engine from the south to the north side would, as soon as he stepped over the north rail of the main track, be precipitated to the rocky bed of the creek, a distance of 17 feet. '!'his is just what hnppened to Kelley Ilnd his hell)er; the fall killing the former, and seriously Injuring the latter. The disfrom the west end of the bridge to the depot is 229 feet. The watertank is between the depot and the bridge, the center of the tank being 20 feet from the west end of the bridge. The depot platform extends nearly to the water tank, and all the buildings and facilities for businlc'ss at the station are between the bridge and the depot. The evidence shows that freight trains going west that carry passengers take w3ter at this tank and do not always pull up and stop at the depot to let the passengers off, but that the passengers have to get off on tile east side of the creek, and cross the bridge, to I'each the depot; and passengers purchasing tickets for freight trains are sometimes sent across the bridge by the station agent to take the caboose. on freight trains going west get .)ff where the caboose happens to be when the engine stops to take water. The customary method of proceeding at night, where there are two men looking after cattle, is for one of them to hold· the lantern and the other to use the prod, and when a steer is down, near t1).e end of the train, it is usual for one of them to go roWld the llcarest end ot, the train, whether it be the engine or caboose, with the lantl,rn, to enable the other to look through the car and do his work. '.rhe night was so dark and misty that a lantern shed light but a very short di.stance. Oue witness testifies that, with a lantelll and a torch or two, "we could not see to distinguish anything outside of the little space around us." 'l'hat part of the charge of the court relating to the material issue in the C:lse was as follows: "It seems to me, gentlemen, that the main que,; ion for your consideration In thiS case is as to the use expected to be made of the bridge, and as to its condition. Was this bridge at Council Hill a place where, as the business of the company was ordinarily carried on, it should reasonably have been expected and foreseen by the company that when stock trains would stop at the water tank, for the purpose of taking wllter tor the use of the engine, the men engaged in looking after the stock would naturally go upon the hridge when thus employed? 'Was such a use, in tart, made of it? It is for sou to say, under the evidence, whether or not that bridge was or was not sueh a. part of the Council HIll station grounds, in the use that was made of it, as that the stockmen, including Mr. Kelley, when transporting cars of stock over that line of railway, had a right to go upon the bridge when they were called upon to go about the train of the company for the purpose of examining their stock. The evidence shows that when the engine is placed in position at the water tank, so that water can be taken, it will extend some distance on the bridge; and, of necessity, persons f;f*king to pass around the front of the train, thus placed, must go upon the bridge. Now, under these circumstances, was that bridge a part of the yrtrd or premises of the company, so that the company should have reasonably foreseen that stockmen would use it when examining their stock in the train? . And were or were not such stockmen, including Mr. Kelley, justified by the pr.lCtice of the company in making use of the as part of the yard of the company when after their stock? If, by the usage of the company, they were justified in usinp; the bridge as part of the premises of the company, where they were expected to go in examining their stocl!:, then the duty rested upon the company of ex:ercising ol'dinary care to put llnd keep the bridge, as paet of the company's yard,' In a reasonably safe condition for the use of parties engaged in shipping Rtock over defendant's line of railway. If, however, the bridge did not form part of the station grounds, and company did not hold it out to the public as a place to be used for the purpose for which Mr. Kelley used it, then you cannot hold the company re>:ponsible for the con;;;equences reswting froll'. it being so used by him, because in tllat case the company would owe him no dutsor obligation to keep the bridge safe for such use. If, howevf'l'. you lind tbat the bridge was a part· of the defendant's premises at Council
vol. 53,ll wheUjengaged in examining his stock, and that he wasjustifted in endeavoring ,Pll.IiI!iI around the front end of the engine,. in the, position in which it was 'then the qUe&tion will oeas to the o:mdition of the bridge for As I have already said to you, the rule on that point is that the QQmpany:is. required to use ordinary care--lluch a degree of care as men of 'ordinary ,prudence .sh.ould ex-excise where human life or limb may be exposed to'da.nger,-inkeeping its premises, where the public are invited to come in traIlsacting business with the company,in a reasonably safe condition, so that in t.he. use thereof no unnecessary risk or, danger is cast upon the public." There was a verdict and judgment for the plaintiffs, and the defendant sued . out this wrlt of error.
mu.: wblIiliMr.·Xelley was jusfl1lecUnuslng,: tinder the instructions glYen you,.
Duncombe,'for plaintiff in error. . A. :N: Botsford, M. F. Healy, and Tho:rn,a'S D. Healy, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges. C.A:.LilWELL, Circuit Judge, (after stating the fMts.) It is assigned for error that thecollrt refused, at the close of the whole evidence; to'give a peremptory instruction to the jury to :find a verdict fo!' the defendant. 'the case should not have been withdrawn from the jury unless the conclusion followed, as matter of law, that no recovery could be had, upon any view which could be properly taken of the facts the evidence tended to establish. Railway Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct. 905. We, think the evidence tended to establish that the· brid.ge was a part of the station grounds, and used as such by the railroad company, and by those having business with the company or itsirains at the station, aM that the company knew, or ought td that shippers of stock, accompanying its freight trains. would occasion to go upon the bridge, in going around, the train to look after their stock, while the engine was taking water at the tank. If th were the facts, thecompany was undoubtSe ed;,f W·not planking the bridge on thp north side of the main track andpll¥ling proper guard rails around it, or takiug other suitable means to guard against Mcidents like that whicll instantly killed Kelley and came near killing his helper. The charge contained a very clear and' a(lcurate statement.of the rules of law upplicable to thE: case; and. the court properly lefUt to the jm:1" to sa:. whether, applying these rules to the facts and .circumstance:> of the case, the defendant, had been guilty of negligence. It was emphatically a caSe 'where the question of negligence was one for the determination of the jury, under proper instructions from the court. That the evidence tended to establish negligence was enough to make it the duty of the court to submit that issue to the jury. Where negligence may be fairly 4educed orinferred from proved or conceded facts, the. case must be left to the. jury. Neither this nor any other court can set aside the verdict of, a jury simply because the court would ha1Te reached a conclusion different from that of the jury, upon the facts. To do so would be to usurp the functions of the jury. In a case involving questions of negligence, the supreme court, speaking by Mr. Justice Miller, said:
v.
FOLEY.
463
"But we think these are questions for the jury to determine. We see no reason, so long as the jury system is the law of.lheland, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these, as well as other's," Jones v. Railroad Co., 128 U. S. 443-445, 9 Sup. Ct. Rep. 118,
And in the case of Railway Co. v. Ives, 144 U. S.408, 417, 12 Sup. Ct. Rep. 679, the court, speaking by Mr. Justice Lamar, says: "When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion fNm them that the question of negligence is ever considered one of law, for the court."
In the case of Railroad Co. v. Stout, 17 Wall. 657,663,664, we think the evidence of negligence was not so strong as it is in this case, and the court said: "The evidence is not strong, and the negligence is slight, but we are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided, if acting as jurors. * * * Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care .bad not been used, and that negligence existed. Another man, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those al4n to it, that the law collJmits to the decision of a jury. Twelve Dlen of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard,-the merchant, the mechanic, the farmer, the laborer,-thlse sit together. consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conelusion. This average judgment thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affalrs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge. In no class of cases can this practical experience be more wisely applied than in that we are considering. ·We find accordingly, although not uniform or harmonious, that the authorities justify us in holding, in the case before us, that, although the facts are undisputed, it is for the jury, 2ud not for the judges, to determine whether proper care was given, or whether they establish negligence."
And see Railway Co. v. Jackson, L. R. 3 App. Cas. 193, 47 Law J. C. P. 303; Railway Co. v. Slattery, L. R. 3 App. Cas. 1155. In Pollock on Torts, (page 381,) the learned author says: "'l'he tendency of modern rulings of courts of appeal has been, If not to enlarge the province of the jury, to arrest the process of curtailing it."
It would no useful purpose to set out in detail all the evidence in the record, and point out wherein it is sufficient to support the verdict of the jury. It is enough to say that we have carefully considered it, and that, in the light of the authorities we have cited, the question of negligence was properly left to the consideration of the jury, whose verdict is not without evidence to support it. The judgment of the circuit court is therefore affirmed.
REPORTER,
voL 53.
OHICAGO,M. & ST. P. RY. CO. v. McARTHUR.
'(Circuit Court of Appeals, Eighth Circuit. December 6, 1892.) No. 152.
1.
RAILROAl> COMPANIEB-AcCIDENT AT CROBBING-CHILD ON TRACJt-EVIDENClIl,
In an action against a railroad com];lany to recover for an in,iuryto 8 child upon the track it is competent to show by a recol'ded plat, according to which the town had be built andth<! lots soltI, that the place where n the accident occurred wal;! within the limits of the town and of a street Crotll>ing, althongh such plat was not acknowledged in the manner required by the statutes.
I.
Sl>llle childrel\ playing near a railroad track within the limits of a town, npon:bearing the :wJ;Wjtle of an approaching train, placed pins upon the rail, and then ran into some bushes. The persons in charge of the train in· so as to cut out several cars from the tended to make a "fiying middle.of the trll1n,and for tbat 'purpose the train was cut in three sections, the conductor pulling the pin between the first and second sections, and then immediately going to the' rt'ar of the first car of the Second section .: to man the brake. After the first section had pasl;!OO, the children out from the bUShes, and one of them, wbUe stooping to pick up the pinS, was struck by the second section, the conductor being unaware of JiliJ presence. The place of the accident was within the limits of a street wbit'h; according to the plat of the town, here crossed the track, but the street bad not been opened for vehicles. and was oIily <ISed by pedestrians. Held, that on these fltcts the court properly refuE!ed to direct a verdict for defendant, 'for the failure to have a lookout on the front of the second section tended to show a want of proper care.
ran
8.
8A.1IE--rnSTRUcTIONS.
The 'charge of the court being otberwise full. aild accurate, it was not error to state that the fact that the children were playing in a public street wouid not mal,e them trespassers, and it would not be presumed that the jury inferred therefrom that the children had a rigbt to play upon the n"ack at the place in question.
In Error to the Circuit Court of the United States for the District of Minnesota. At Law. Action by Frank McArthur, by W. W. McArthur, his guardjan ad litem, against the Chicago, Milwallkee & St. Paul Railway Company, to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. Affirmed. H. H. Field and William Gale, for plaintiff in error. Frank B. Kellogg, (B. W. Eaton and Davis, Kellogg & Severance, on the brief,) for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS. District Judge. SHIRAS, District Judge. From the record in this case it appears that on the 30th day of May, 1891, Frank McArthur, who was then about six years of age, was run over by some freight cars which formed part of a train operated by the Chicago, Milwaukee & St. Paul Railway Company over that branch of its line which passes through the village of Mazeppa, in Wabasha county, Minn. To recover for the injuries thus caused him this action was brought in the district court of Wabasha county, and was thence remoyoo into the United