H'INTOSH II·. <;HICAGO, M. & ST.P. BY. CO.
661
McINTOSH 'D. CHICAGO, M.
& ST. P. Ry.
CO.
(Oircuit Oourt, D. Minne80ta. November 14,1888.) RAILROAD COMPANIES-INJURIES AT CROSSINGS-'-CONTRIBUTORY NEGLiGENCEPROVINCE OF JURY.
Deceased was driving a heavily loaded wagon on a street in a large city, crossed at ita intersection with another street by four tracks of defendant's road. A gate was usually lowered across the street, controlled by men in an observation tower. who, being unable to see by reason of the fog, were at the time acting as flag-men, the gate being raised. Several teams were in waiting for a passing freight train, and when the track was clear they attempted to cross, deceased being last. As his horses were on the rails an alarm was given of a passenger train approaching, and two men on the wagon with de-. ceased jumped off safely·. Deceased struck his horses to urge them forward, the wagon was dashed against the curb·stone. the foot-board upon which de-' ceased's feet rested broke, he fell under the wagon wheels. and was killed; the horses escaping.. It was uncertain whether deceased attempted to jump. and springing from the foot-.board broke it. There was evidence that it was defective,. but none that deceased knew it. and one of. the o'ther men who" was heavier than deceased sprang off of it without its breaking.' Held noev- ' idence of contributory negligence in'the use of the defective foot-board, to require the submission of the question to the jury
'AtLaw. On motion for new trial. . ' . ' 'Action by James W. McIntosh,administrator of William Fry, de-. the :Milwaukee & St. Paul RailwliY Campany, for negiigentlycausing intestate's death. Verdict for plaintiff, and defend,.' ant moves for a new trial. , ' , Hunt &- Wilkinson, Howard &- Richardson, and J.'H. RandaU, for Plain,., tiff. ., . . ,'Flandrau, Squires &- Cutcheon,. for defendant· . SRIRAS, J. Onthe31st day of October, 1887, WilIil).IIl Fry was engaged in the business of teamingin the city of Minneapolis, and on the morning of that day he dro.ve .his wagon and team along Tenth !iv,enue, . to the point where the same crosses the line of defendant's railway; it being his intent to pass over the railway track. The wagon was heavily loaded with asbes and garbage; there being on it two men besi4es Fry,· who was driving the team. At the point of intersection of Tenth avenue and the railway track, which is likewise the point of intersection of worked by a pneu'Third street, the railway company had erected matic pump in a tower, wllich were lowered across the streets . when a train. was approaching. On the' morning in question a rqg had prevaileq, so that the men could not fromthe tower watch track, and they had left the gates upraised, and hild peen a9ting as flagupon the ground. A short-line train St. Paul was dlfe at ,crossing about the time Fry drove down Tenthavenue, and th&re was .$0 afreight traiuator on the crossing; so that all ipeither directionOl;!' Tenth avenue or Third were, comp'eIled 'to" The freight tr,ainwas being m;oved out ofthe way, and soonll.s :It,.()leared the9f<?ssing the way. \ViiS for of teams; '.
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662
. FEDERAL REPORTER..
as the gates were not closed. One of the two men at the crossing had gone into the tower for the purpose of pumping air into the cylinder of the pneumatic pump, and there was left, therefore, to keep guard at the double crossing, only one miLn. As soon as the passage was left Clear the. teams that were waiting, that driven by Fry, started across the The short-line train was now approaching the crossing, and the flag-man made some effort to warn the persons of the danger, but owing to the tact that there were practically four crossings to watch and num ber of teams approaching, he was unable to give warn, with a any effectite signals, and the teams started over the track. The wagon driven by :Fry, being heavily laden, was the last to reach the railway tracks, andjust as the horses were passing upon the line of rails on which the coming train was approaching, the man sitting by Fry saw the same, gave and sprang frorb. the wagon. At the same instant the flag-man rusbed forward, exclaiming: "Get out of here; get out of here." Fry was seated on a spring seat in the front of the wagon, with his feet resting on a foot-board attached .to the front end of the wagon box. When th4:' alarm was given him, be rose up, and, as some of the witnesses testify, he struck the horsea with the reins to urge them forward. At that instant he fell between the horses and the wagon wheels, and, the horses starting forward ata rapid pace, the wheels of the wagon passed over Fry, causing injuries which resulted in his death within 24 hours·. Theflag-lnan pulled the body from the track, so that it was not touched by the locomotive. By the running away of the horses, the wagon was carried clear of the track, and it escaped an actual collision with the train. .. Upon the trial th\'l question was submitted to the jury whether the de. fendant company had been negligent in not having a proper guard kept at the crossing, and whether Fry had been himself guilty of negligence in attempting to drive across the railway tracks. The jury, by their ver· dict, found on part of the company, and freedom therefrom on the part of Fry, and these findings are entirely justified by the evi· dence. The verdict being in favor of the plaintiff, the defendant now moves for a new trial on the ground that "the court in its charge with. drew from,the considerationdf the jury the question as to whether the deceased,Fry, was guilty of contributory negligence in rising and puttinghis weight upon the foot-board of his wagon when the same was in a defective condition, and by reason of such defect broke under his weight and precipitated him under the heels of his horses." The evidence showed that when Fry was warned ot'the danger caused by the coming train, he rose upon his feet on thefoot-boardj h,ut whether he ?id so for the purp0$6 of trying to escape by jumping fron;.' the wagon, or for the was left uncertain. It was also in purpose of whipping up his. dispute whether the foot-board hrob beneath his 'weight, or whether his foot slipped,attd caused his fall. 'It was with more especial reference to the first oHhese points that the pa;rt of the charge excepted to had ref.; erence.Thejury were instructed that it made· no ditl'erence whether FrY's purpose was to attempt to escape byjumping from the wagonJleav.
M'IlSTOSH V. CHICAGO, M. & ST. P. RY. CO.
663
ing it to its fate, or to urge the hori:les forward, and so attempt to clear the track; that if the company by its negligence had placed Fry in a position of danger, it would be responsible for the conseqUf'llCea; and that it did not lie with the <;ompany to say that he was in fault because he attempted to jump from the wagon, or because he attempted to urge the horses forward. But granting that the effect of the charge in this particular was to eliminate the question of contributory negligence from the case, as is claimed by defendant's counsel, was it reversible error so to do? The point made by the defendant is that it should have been left with the jury to determine whether Fry was guilty of contributory negligence in rising and putting his weight upon the foot-board of the wagon, when tbe same was in a defective condition, by reason of which defect it broke under his weight. This embraces three propositions, to-wit: That the jury would have been justified in finding that the foot-board was ina defective condition; that it did break under his weight, and that it was in such a defective condition within Fry's knowledge, that he was guilty of negligence. in rising on the same when the sudden emergency came upon him. There was some evidence by one witness, who examined the foot-board after the accident, showing that there was an old fracture in the foot-board. Reliance is placed upon certain statements said to have been made by the witness Thornton, who was one of the men upon the wagon, to the effect that if the foot-board had been sound the accident would not have happened, apd that he had told Fry to have the footboard repaired. Thornton qenied making any such statements. If Thornton did in fact make these statements, they are not competent evidence against the plaintiff. ,Thornton has no interest in the case, and the statements, if made at. all, werEj made after the accident had occured; were no part of the res gesta3; and if a new trial were had these statements could not properly be put in evidence. There was direct and pos.iiive evidenGe introduced .by plaifltiff tending to show that the breaking of the foot-board was caused by the team running the wagon against the curb-stone after it had passed over the railway track. So, also, ·there is no direct evidence on the subject of Fry's knowledge of the defective conditionof the foot-board, if we assume that it was defective. Admitting, however, that there was some evidence tending to show that the foot-board was in bad order, and that it broke when Fry's weight came upon it, and thereby precipitated him beneath the wheels of the .. wagon, would the jury have been justified in that Fry was guilty of negligence in rising on the foot.board in hisefiort to escape from the on-coming train? The testimony of Thornton and James, the two men who. were upon the wagon with Fry when the accident happened, was to the effect that the wagon had been in daily use since the 5th of July preceding the accident; that there had not been any visible defect in the foot-board; that thefoot-bpard was used daily by them, and it had never given way; and that Thornton, who was sitting by Fry when they came down upon the railway track, jumped from the wagon in making his escape, using the foot-board to 'spring from, and it did not give way beneath his weight. Under such circumstances would the jury have been
664
REPORTER.
C
justified in finding that Fry was guilty of contributory negligence tn "rising and putting his weigilt upon the foot-board" in his effort to escape froUl the coming train? The uncontradicted evidence shows that the foot-board bad been in daily use for weeks before the accident,and at the very moment of the accident Thornton, who was a heavier man than Fry, had before his very eyes placed his weight upon the foot-board, and used the same as a means of support in springing from the wagon. If it would-as it did-support Thornton's weight, why was not Fry justified in actingup'on the belief that it would equally support his weight? The evidence' shows without dispute that the wagon-bed was full of ashes, and the seat was so placed that the feet of the men in the seat rested on .this foot-board. When the necessity arose of attempting to escape from the sudden danger caused by the approach of the train, what was more natural than for the men to throw their weight upon the·foot-board? Thornton, being the first to notice the danger, rose upon the foot-board, and by jumping to the ground he escaped injury. Fry, however, was in charge of the team, and probably made the effort to urge the horses forward, and for that purpose struck the horses with the reins, and in doing so threw his weight upon the root-board , and in doing so defendant claims be was guilty of negligence defeating the right of recovery. I wholly fail to see any fair view of the evidence that would have justified the jury in finding that Fry was guilty of negligence in so doing. A findwithout support in theevidehce, and ing to that effect would have bad the jury upon that ground found for the defendant, it would have been the duty of the court to set aside the finding. . There is notbing proved in the case that would have justified the jury in finding that Fry, in the exercise of ordinary care, should have foreseen that the probable result of his putting his weight upon the foot-board would be that it would give way beneath him. If, in the exercise of ordinary care, he was not bound to anticipate such a result, how can it be said that the fact that he did put his weight upon the foot-board was negligence? The fact, if it be one, that tbe foot-board gave way beneath Fry does not show that Fry was negligent in placing his weight thereon. To show negligence it would have to appear that the condition of the foot-board was such that Fry, when he was about to place his weight thereon, knew or should have known that it would probably give way beneath him. The evidence wholly fails to show such a state of facts as would justify a jury in finding that Fry knew or ought to bave known that he could not make the use that he did of the foot-board. Under c such circumstances it was not only not error to withdraw the question of contributory negligence in the particular named from the consideration of the jury, but it would have been error to have submitted the question to them, for the reason that thE' evidence submitted did not present the· question. The motion for a new trial is therefore overruled.
CHANDLER ". CALUMET & H. MIN. CO.
665
CHANDLER t1. CALUMET
& H. MIN.
Co.
(Ot'rcuit Oourt,
w: D. Michigan. No D.
November 14, lSSS:)
1.
PuBLIC LANDS-SWAMP LANDS-PAROL EVIDENCE.
Under the provisions of the act of congress of September 28, 1850, conferring swamp lands, and the Michigan act of June 28, 1851, evidence in pal' that .a parcel of land was at the date of the first· named act of the quality therein described, is incompetent. after the secretary of the interior has discharged his duty, and approved lists of swamp lands, made under his directions from the field-nores of survey, which lists do not contain the land in question. although embracing other lands in the township in which it lies, and where no judicial or other proceedingshave been bad to modify his action, or to extend or renew his powers, over lands not so approved. In such ease the state can-. not claim that lands not so approved passed to it under the language of the act of congress.
2.
The state of Michigan, having accepted from the United States a grant of lands to build a canal, provided for the selection of the same by its own agents, subject to approval by the secretary of the interior, made a contract with a corporation for its construction, and patented the land in question, (with other lands,) duly selected and approved, in accordance with its legisla· tionand that of congress on the subject, to such contractor, in 1855, who received the same bona .fide, is estopped from setting up that the land inured to it under the swamp grant. and not under the canal grant. 10 St. at Large, 35; Sess. Laws Mich. 18G3, No. 38, p. 48. (Syllabu8 by the Court.)
SAME-EsTOPPEL BY STATE.
At Law. The action was ejectment for the S. E. t of the N. W. t of s{)ction 23, township 56N., range 33 W., in Houghton county, Mich. This lanq lies close to the outcrop of the Calumet lode, the lode underlying the whole of it. Plaintiff claimed the land under a patent issued by Michigan to him, November 3, 1887, describing the land as "swamp" land. By the act of congress of September 28, 1850, the United States gave to Michigan (and other states) the whole of the swamp and overflowed lands made unfit thereby for cultivation, within the state, and made it the duty of the secretary of the interior to make accurate lists and plats of all such lands, and transmit the same to the governor of the state, and at his request to cause patents thereof to issue to the state, conveying to it the fee-simple of such lands. It appeared on trial, by the records of the land-offices of Michigan and the United States, that the secretary had, in 1854, "listed" and approved to Michigan a large number of descriptions lying in the above township and range as swamp lands; the laIfd in dispute not being included therein, nor in any list of l:lwamp lands made at any time by the secretary. It appeared also that in 1850, after the passage of the above act of congress, the secretary of the interior had written to the United States surveyor general a letter of instructions as to the mode of selecting or segregating the swamplands from the other public lands, in which he had directed that in cases where the field-notes ,of the United States survey of lands should be accepted by the state as the basis of segregation, and tpe intersections of the lines of sw.amp or 'Overflow with those of the i::urvey alone were given, those intersecti()ns