.'IJ. LITTLE ROCK & 1rI. R.

co.

631

LoCKHART". LITTL:l!l

Rocx c% M. R. Co. et ale

(Oircuit Oourt, W. D. Tennessee. May 95, 1889.)
,L

RAILIlO.\.D'CoMPANIES-TJuFFIO ARRANGEMENT-INJURIES TO EMPLOYES 01' OTHER COMPANIES. ,

Wilere two railroads have a traffic interchange of carB, if one sets loaded cars on the track of the other at an unusual time of the night, and does not give notice, or put out danger signals warning, whereby an employe of the other is killed by collision with the obstruction, it is liable in damages for the negligence. '
It seems that both companies may be liable in such a case,-the deceased man" own company because.it must furnish a clear track, or because the other company is pro 'hac its agent 'or servant in the matter; but where the court withheld a is not. a discrimination by thecoilrt against the other charge on that point' company.for which it is entitled to a new trial. A joint wrong-doer cannot complain that his companions in wrong escspe liability 8s a ground for a new trilili' .:
', , '

.. BAllE-INSTRUCTIONS.

.. &Ja-,.;ORDINANOB LIMITING SPEBD-RIGHTS OFEMPLOYEI.

A Ul,unicipal ordinance limiting, the of engine\! passing through a city,!, generally for the benefit of strangers using the streets, and it is doubtful1ftbe ,railrellll employes can ·havethe benefit in cases of COllisions between trains; but if the rate.9f speed .does not cause the injury, it Is hnmaterial, especially where the victim of the accident is in nO'way in control of the engine, and notresponsible for the speed. '
. ·

"

BAMB;orlt,A.NAGEMBNT BY TllUSTEES UNllJql. MORTGAGE.

Whei-e the Ip.anagement of the road was at tbe time. of the accident jointly in the , hands, of trustees of the mortgage and the company purchasing from them, under a oontraAt ,etaining possession as a security for ,tpe pUrchase, money, but alsl) providing ttiatthe trusteessh6uld be indemnified for losses by negligence pending the transfer of the property nnder the contract, both are liable, and the plaintiff may 1.'I¥'OveJ.: against either; the verd.ict and judgment being1l1()ulded, under the see Code,to suit the circumstances.
It is not contributory negligenCEl if a switchman ride on the front foot-boord Of the lJw1tcn-engineto which he is attached while en route to the work he has todo., .It is'not contributor,. negligence to ride in one place merely because by the accIdent it. JIl8y. been demonstrated tpat some other place would have been safe. ·

ls.lU.I!lTEB AND BERvAN1'-CONTRIBUTOBT NEGLIGENOE.

At On motion for a new trial. OJl'the .trial this case there was a verdict of $4,000 for the plaintiff. subs41nce,charged the jury as follows: . "If you find from Thec()urt. the: proof that the traffic agreements, usages, or customs between raili<»1d cPIllpanies justified the Little Rock Company in delivering the cars on main traCjkof Chesapeake Company at the time apd place placed and without notice of. the fact ous]y<?rat that time. given to the Chesapeake Company,then the Little Rock (iefen9ants are not liable to this plaintiff, but the latter would, certaiply. be liable to him, and you will so place your verdict.. But if yqu find froID. tHe proof thattpedelivery was ,at a time.l)Jld place andin, a authorizedby.Jhe agreements, usages, o,r customs of dealing 1?etween the companies,'then the Little people alone are liable, and y,()u "rill so place )'our verdict., Both would be liable if you ,find from .proof that by their agreementsj customs, and usages in dealing , aqout the transfer of to the track,!, or by their construction of. such , or by their to ma¥;e regulati()l1s, that are and proper to delivery frOIll obstrupting this track,tlley , tb"is wUl!againsHhe :r,i,ttle Rock C0ll?-pany ,iIP9 CQWI'WllY'

of

632

« Wright, for plaintiff. W. G. Weatheiford, for Little Rock & Memphis Railroad. Holmes OumminB, for Chesapeake & Ohio Railroad.
Turley

HAMMOND, J., (after stating the facta as above.) . This seems to me a ,very simple case in its,Inain features, and so gross was the negligence of the defendant the Little ,Rock & Memphis Railroad Company, by which the plaintiff's ihtestate lost his life in. a most shocking and horrible way, that its humane counsel scarcely has the heart to deny it or defend against it, zealously,' earnestly, and ably, as he has struggled to find some way to relieve it against the consequences of that negligence by interposing other defenses ,than that ofa denial of the negligence itself. The facts are that the Little Rock & ¥emphis Comp.any-I speak now of the management, whichever of the defendants comprisedthut management, and without reference to that dispute-had a traffic arrangement-whether by contract, usage, or custom, or by a combination of all of these, is immaterial-with the other defendant company, the Chesapeake & Ohio Railroad, by which it delivered cars to the latter company and received cars from it. Theseinterchanges of cars were. generally made on a portion of their neighboring tracks called Hole," but at certain hours in the day-time, and under restrictions not material, perhaps, ,in this place, they might be made on the main tracks on our levee, close to and parallel with each other. The Little Rock people being crowded for room in "The Hole," delivered certain loaded cars, ac. cording to their usage,on the Chesapeake main track. They were returned,owing to some dispute between the respective clerks, to "The Hole," and again returood to the main track, and yet again to "The Hole," when at night. at a time not authorized by the contract, usage, or custom, or any of them, a,nd at a time never before used for that purthe Little Rock yard-master, still pressed for room, set them on the main track of the Chesapeake road, giving no notice whatever of doing so to the Chesapeake people, and not putting out any danger signals. The night was dark and murky, and by a most uhfortunate com bination of circumstances a train of the Little Rock road, by chance, stopped on its OW11 tritbk a few feet away and parallel to the other, with the locomotive immediately over against these loaded ears that had been left on the Chesapeake track. The smoke from this locomotive in great clouds enveloped the obstructing. cars, and completely obscured them. A switchengine Of the. Chesapeake road came along on its regular run of business, running: at a rate variously estimated at four, six, seven, nine, and ten miles per hour by the witnesses. On it, among others, was the plaintiff's intestate, a. switchman, whose duty it was t.o accompany this engine,nding .on the foot-board in front of the head-bar of the engine, placed there for the use of switchmen. The blaze of the head-light from the Little Rock locomotive further obscured the engineer's vision, and it ran into the loaded cars, mashing the intestate to death. case against a railroad company? I Was there ever a more think not. The contributory negligence insisted on--and always the

LOCKHART II. LITTLE ROCK &: H. R. CO.

638

company lays hold of any circumstance that may be at hand to suggest· that defense-was that the intestate did not ride on that part of the footboard at the rear of the engine, where he might have escaped. So he would have escaped if by some factitious circumstance he had not been on the engine at all, or if he had engaged in practicing law, and never had been a switchman at all. It is conceded that when throwing switches or otherwise engaged in front his duty called upon him tlnd permitted him to ride on the front foot-board; but it is assuml;ld that because the engine was en route to its work further down the track he should have ridden in rear while 80 en route; but by the same reasoning, if the collision through some other negligence of the defendant company had' ceme from the rear, or if the engine in this very case had been running backwards, then the company would have said it was contributory negligence not to ride in front. Always, on this plan of constructing contributory negligence for a bulwark of defense, the unfortunate victim should have been in that place shown by the circumstances to have been the safe place. The court told the jury it need not consider the matter of contributory negligence, and this is clearly so, it seems to me. These switchmen accompanying a switch-engine may ride on it anywhere, and cannot, as everyone knows, often tell what they may be required to do in emergencies that may arise. This man may have been wanted in front to couple to these very cars that brought him to his death, for all he might know. if the 'foreman had been going to drag them out of the way of trains, and he would have been so wanted if they had known they were there to endanger every life borne upon those rails until they were removed. How did he know that the foreman was not engaged in some such errand, en route, or on some other that would call him to the front? I should not dwell on this but for the desperation with which the contributory was pressed at the trial, and the reference to the victim's being out or place, made in the brief on this motion. . Objection is made that the charge discriminates against the Little Rock Company as againRt the Ohesapeake Company; but it does not Seem to me amenable to that criticism. The court thought both of them were liable, and was almost willing to so direct a verdict, but, mindful of the cases; one of which oounsel for defendant cites, -0'NeiU v. Railroad Co., 1 McCrary, 505,507 ,-which invoke caution about doing this, even on undisputed facts, because sometimes negligence is an inference of fact, . notwithstanding there is no dispute as to the circumstances, which the jury should make, and not the court, I concluded to submit the question to the jury,expecting that bot"h companies would be convicted by the jury, und would now unhesitatingly support a verdict against both. The Chesapeake Company might have been held on the ground that, whatever cost or expense of inspection may be entailed, every railroad companyowes to its passengers and employes whose lives are at stake a clear and unobstructed track for every train or car it puts in motion and orders on the rails with the assurance that there is a clear track; or, more certainly, perhaps, on the ground that by this traffic arrangement, whatever it be, for interchanging cars with another company, that other com-

614

RDlllRAL REPORTER,VOl.

40.

pilny is only its agent of.servant in the use of the track and management, of the business, the employes guilty of the negligent acts being pro hac its own employes; and the first company is therefore as much liable for the negligence of the employes of that other company as for that of any other of its own servants or agents. This does not relieve the servant or agent of his own liability, of COUfse. Both are liable, just as the Little Rock Company's yard-master would be liable to plaintiff in this case as well as the Little Rock Company itself. .Both are'liable, all are liable, and ought to be, in such a'case of gross negligenee as this. But the court did not say this to the jury, 'and really that is the chief grievance of this motion for a new trial.· The court did not so charge because plaintiff's counsel did not wish to embarrass, and, as he thought, somewhat imperil, his case with these, to him, very doubtful propositions. And inasmuch as the plaiIitiffeould ;sue anyone of those liable to him, and not sue any he chose to release, and might, if pressed to it, relieve himself of.the embarrassment by dismissing as to the Chesapeake Companyat the last moment; -and inasmuch as none of the other defendants, arid particularly the Little RockCoinpany, had the least concern about the liability or non-liability of the'others,-I concluded that the plain,. tiff had the legal right tobavehis case-against the Chesapeake Company put to the jnryas he made it,and to decline to take a verdict, if one dould be had, on these other; grounds. It is a mere groWing ,out of the struggle of these: two companies to throw the. blame of this man's death on each other, to suppose that there was an unjust discrimination here. What concern 'is it to the Little Rock Company whether the Chesapeake Company issued or not sued, held or not held? It does not in the least affect its own liability,does not mitigate it, or In any sense concern it. Therefore :ithas no right to complain, certainly no right to a new trial, becausebf the failure of justice against"it as a joint trespasser. The only p08sibleconcern the court has felt has been lest this treatment might bave prejudiced tbeLittle Rock Case, and turned the jury against it; but it had a case anyway; the jury needed no tumingorprejudice.The liabllity was ,clear, and not to be evaded. It was 8li'indulgence to submit sucb a caSe to the jury. The Little Rock yard':' master, on his own evidence in this case, ought, to have been indicted and convicted of manslaugnt.ei'jand· if corporations were liable for stich crimes, as they are for libel and the like, of their agents, then this corporation should have been punished for manslaughter. The court does not c6mptehendhow the question of excessive speed, so'much argued on this motion, properly enters into the consideration 'Of't.hiscase. It is quite plain that at any speed""'-whether the six miles allowed by the' city ordinanca,' or 'less, or more......this man would have baen killed. Whether running at six miles or less, the engineer could not have seen any better through the inwrapping· smoke nor against the glare of the head-light, both caused by the Little Rock Company. These were not elem:entsofits negligence, but it estops them, somewhat at least, from insisting that the engineer of the switch-engine carrying the intestate to a certain death should have been able to

LOCKH-AltT'". LITTLEROCK & MOIL CO.

685

through them. The speed did not in any legal or proper sense cOlltribute to the death. And if it did, the speed was not under the control of the victim, and it was not his negligel1ce, contributory or otherwise. It might make theChesapeuke Company liable to him, but does not relieve the Little Rock Company. It is not necessary. therefore, to considerthough I.have carefully examined them-the cases on excessive speed, as tested by a municipal ordinance. All the cases except one are where the victims are strangers using the streets and highways, for whose benefitthe ordinances are passed. Whether employes on tbe railroads, injured by collisions of trains with each other, can get any benefit of these ordipances is doubtful; but I do not .go into that here, for the reaSOI;tS stated. Now, as to the various defendants representing the Little Rock Railroad and their respective liabilities, so much considered at the trial, before the trial on the pleas in abatement, and now· again on this motion for 'a new trial, it may be said that these considerations seem quite immaterial. They constitute no defense that is anything other thana very barren technicality, on the facts here, however formidable they might be on other occasions. They remind one of the school game of "swapping jackets" to conceal the real culprit. It is always a difficult matter for the public or anyone outside the management itself to tell who manages and controls a railroad on a particular day, if that company is operated by" trustees" or "receivers" or "bondholders," and the processes of reorganization and other like processes are on in the courts, as was this company. Whether the "old company" or the "new company" orthe "trustees" are in control is a perplexing problem, depending upon almost everything else than outward appearances. The tracks, equipments, trains, agents, officials, etc., are the same substantially, whether one or the other be in possession or control at the moment of the accident. Here there was resort had to introducing the "auditor" as a witness to show how he kept the books, as if it be a matter of book-keeping; and he· could not tell. He kept his books in a certain way, as he was told, but at last the problem is to get at the respective interests, rights, contracts, etc. Is the representative of every man killed to hunt this up, and decide the complex questions of ownership, right of possession,and control involved in the very lawsuits brought to settle these questions? Sometimes he must do this, no doubt; but here he was relieved of it. He brought all the parties before the court, and it turns out that either of two or both are liable to him. Either the new company or the "trustees"-whether the latter individually or only as to trust property is again immaterial-are liable, and both may be. The precise fact is, perhaps, that the new company, under its contract of purchase from the "trustees," was in beneficial ownership atid control, taking the earnings to itself, but all in the name of the trustees, who reserved or retained nominal and actual control of the management as a security that the new company would perform .the stipulations of the contract, namely, deliver the bonds which constituted the purchase money,and indemnify the, trustees against all debts like

636

FEDERAL REPORTER,

vol. 40.

this, incurred while the property was in this transition state. Now, it is true that we are not enforcing that indemnity at all,nor concerned with it as such; but the fact shuws that these two owners were in joint possession and control at the moment of the accident, each according to his interest, whether as agents for each other or otherwise is immaterial herejfor as to thi!! plaintiff both are joint trespassers, and both or either are liable to him. and they can, inter sese, arrange to pay the judgment according to their contract, whichever satisfies it as to him. Why should\!lJ.e new company stipulate to indemnify the trustees against claims like this if they were not in control in fact? It is a fact showing that the beneficial ownership and management was with the new company, although the trnstees remained in nominal possession, and this peculiarity of the situation can but make both or either of them liable to the plaintiff. Under our Tennessee Code the court and ry have statutory power to mould the verdict and judgment in just such cases according to the right of the case. Mill. & V. Code, §§ 3687, 3688; Knott v. Ounnin,qham, 2 Sneed. 204; Pa'l'1"iJJ v. Brown, 5 Yerg.267. There is no difficulty under this practice in rendering a. verdict against both, to bes/ltisfied by either, and such is the judgment in this case. Overrule the motion.

UNITED STATES ". HUGGETT.

SAME'll. DARKEBS.

(01.Tcmt Oourt, N. D. OMo. July 1, 1889.)

L

CRIMI1UL LAW-OBSCENB PUBLICATIONS-LETTBRS.

PI'ior to the recent aots of congress, letters were not included in the inhibitions of Rev. St. § 881lS, against the use of obscene language in matter deposited in the IDaUs. . '
OJ'STATUTEB-REABOlIfABLE DOUBT'-PENAL ACTS.

9.

'rhe rule of reasonable Cloubt, in the construction of 8tatutes, does not apply to di8charge the accused, but the courts enforce a 8tI'ict con.!ltruction of penal statutes, confine theID within the clearly expressed or necessarily iIDplied IDeaning of the language used, and will not enlarge theID to include conduct equally obnoxious because it is Within the IDischief to be reIDedied.
FEDERAL COURTS-STARE DECtSIs-RANK 01/ JUDGES.

8.

'Q"pon distinctively federal questions, the decisions of thE! supreIDe court only arE! technically binding as authority on the infeI'ior courts, and the relative rank of the judges sitting in the circuit courts does not add to the authority of the decisions ]]lade, but the value of the rule of stare d.eclsis depends upon all alike yielding to the force of the first precedent established on the circuits. Until all the judges pay strict regard to this rule, uniforIDity under the existing systeID is iIDpossible.·

On Demurl'er to Indictment. Defendants were each indicted for sending through the mails letters which were 'sealed, but contained language confessedly indecent and ot>;. scene. There were demurrers upon the ground that the sending of such letters was not prohibited at the time of the mailing of these particular letters" which was before the passage by congress of the acts of June 18