';WS
,',' FEfJERAL BEPOB'ltl:R'iVOl.: 5l..i
this '],lad lleearendered in 'England and in statefil·pri:01 to: the year the year 1886 the reaSOJ;1·iOKfouild in thelopinioos"l,'endered-in th.t·;.case was ecinclWlill!'lly, refuted, 'and .'tHe deaisioD{'itse1f:·repudiated··by·the s'u'premecoU>l!t!ofthe United States in an exhaustive opinion delivered, by Mr. Ju&flceFllELP in Little v. Hackett, 116 366,' 6 SupdJt.Rep. 391;· and the convincing logic of the distinguished; jurist who deliver.ed thpt opiuion,and his exhaustive review0ftheautharities. have settled the law in this cauntry upon this'slibject, to.have,do:Dvinced the learned jqdges of the "court of appeals in England. that. the rule in Thorogood, v; JJryq,n. .was erroneous;, far inl&,87,in'J!he BeMina.,12 Prob.i Div.58, in exhaustive ·opinions dnwhieh the l111tharitiesare again carefully. reviewed, .they expressly disapproved the: reasoningand.ovetruled the. deoision in that -ease. With' the: single exception. or' the' supreme. court ,of the state Qf . Wisconsin, which: ,had, become committed to the doctrine'of Thorogood v. Bryan, priort61886-i the 'state courts bave uniformly held ,iih,at one who, whileridinghdhe ,his iuvitli:tion,is injured by the negligence' M a' third party, may .recover· against the latter, not·withstanding tlle of themv,ner: (:)f the carriage in driving his team may have contributed. to the injJJ.ry, where,the person injured :is without fault and lIas no authority o"lerthe driver. ,Follman v. Oity oj Mankato, 95 Mhm. 522, 29N. W .. l,Wp. 317; Borough oj OarliBls v. Bris-
bane, 113 Pa>St.544,,6(l\i!.·Rep.Z72; Robinsonv. Railroad 00., 66N. Y. 11j Dyer Railroad Co., 71 N.,¥'. 228; Masters071: v.Rf}:ilroad 00., .84N.Y. 247; Cuddy v; Horn, 46 Mich. 596, 10 32j 7rans,fer Co.v. Kelly, 36 Ohi.o,St.87; Railway. Co, Y. Eadie" 43 Ohio St. 91, IN. E. Rep, 519; BennefJ,v. New Je:rsey,R. &- 7'.00.,:36 N.J. Law, 225; Railroad Co;v. Steinbrenner, 47 N·. J, Law, 161; Railway Co.v. Shackk', 105 JIL 364. "
. This ,rule is by authority" oommends itself to the .reason, ·was properly and carefully 'given. to the jury for their guidance by, the judge below, and the judgment below is affirmed. i ,I
KANSAS Ctt1",FT. '13. & , "r' I
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So BAME-LOOKING AND LISTIilNiNG. . .', , ,. .' '" Whllei1;':is the duty.l1f an engineer on:a paSsenger train approaching'. crossing .du,e care to ascertain 1\ train isapproacbing of. .be said as.8 matter ot law'that bflB bound to Hsten, in addition to iookhig, although'tpe view is: limited by obstl"uctlons. '
. III an action a orosslngpf railroads, it C&lln.ot be said of law that1 of plainiurs trllln to stoll absdluiely at the stOpping' post contributec1 io tM injury, when 1t appears that at tIlOll.t it:l»oyed'slowly,pD.str.tne.post, and. thAt engineer looked tp the lltoppiJ:!R' post ol;l; c;>tb.'er rpail:" ,.n.,d thell in! sigl11;.
ON CROSSING TJU.CKS-Dulfyro'ElTop·
)[ANSAS CIT-Y f FT. S. & II.
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CO. t1. M DONALD.
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179
'rRIAL-RaCIlIVIN!t
VIlBJ;lIOT IN PBB$IlNOIi OJ' JURY.
In IlA .l1ogainllt a raUroad company for i!1juries received in a collision, it waa not errortb receive and have read in open court, and in t'be presence of the jury, to in 'another action for injuries occasioned by 'he same lision. . AllowiIig't.elitfli:Jotty by witnesses in rebuttal to be given in IUpport of the evidence in is within the discretion of the trial court.
'" .T:aUL-RIlBUTTAL-DISCRIlTION OJ' COURT.
In Error to the. Circuit Comt of the United States for the Eastern Diatrict of Arkansas. . Action. by Harry McDonald against the Kansas City, Ft. Scott & Memphis Railroad Company to recover damages for personal injuries. Verdict and judgment fol' plaintiff. Defendant brings error. Affirmed. C. H. Trimble, I. P. Dana, and Frank Hagmnan, (Adama &: Trimble and Wall(tCll PraU, on the brief,) for plaintiff in error. George H. Sanders and ]lfr. Watkins, for defendant in error. Before BREWER, Circuit justice, SANBORN, Circuit Judge, and SRIRAS, District Judge. SRmAs, District Judge. On the 9th day of July, 1890, a collision occurred between a pasllenger train running 'on the Little Rock & Memphis Railway and a freight train on the Kansas City, Ft. Scott & Memphis Railroad, at a point where the lineg of these companies cross each other, near Hopefield, in Crittenden county, Ark. The defendant in error was the conductor in charge of the passenger train, and for the injuries caused him by the collision he brought suit in the United States circuit court for the eastern districtofArkansfis against the Kansas City Company, claiming that the collision was due to nep;ligence on part of the persons in charge of the freight train. The answer filed in the cause denied all charges of negligence against the defendant company, and averred that the collision was due. to the negligence of those in control of the passenger train on which the plaintiff was the conductor. Upon the trial before the court and jury the plaintiff recovered a verdict, upon which judgment was entered, to reverse which the railroad company has brought the .case to this court upon a writ of error. The evidence on behalf of the plaintiff below was to the effect that when the passenger train on the Little Rock road reached the stopping post, which was located about 200 feet from the crossing, it came to a dead halt; that the engineer looked over to the stopping post on the Kansas City line; that no train was then in sight upon that road; thnt thereupon the engineer gave two blasts of the whistle, and started his train forward to make the crossinp;j that from the time he started his train in motion, the enp;ineer did not look up the line of the Kansas City road until his engine was going on the The testimony of the only witnes& introduced on behalf of the defEmdant company was to the effect that train, of which the plaintiff was conductor, did not come to a dend,halt at the stopping post, but slowed down its speed so that it was not running at a rate to exceed one half or three quarters of a mile an ,hour. evidflnce there can be no d9ubt that when the LittleRock train started 10rward from its stopping post the train on the Kansas City
road had not ·reachedUs' stopping post;' and-therefore; according to the admitted 9.I1S% the Little train ha.1i the right of way, and·no·fact is made '00 appear which should have caused the engineer to forbear starting for the crossing., ., The witnesses for both parties agree in the statement that as the trains approached the crossing, and at the time of the collision, the freight train was moving more rapidly than the passenger train; and, as the engine and several of the' coaches of the passenger train passed the crossing ,b,efore the engine of the freight train struck tb,e passenger train, it is demonstrated that the latter not only reached first, but also .that tl;1e engine of the passenger train must have}eached the point of intersection, before the freight enginQ reached its stopping post, where it should have been halte4. for the pnrposeof whether the crossing was unobstructed. , The ,coUf,t jury, that the plaintiff could not ,recover unless the collision was caused by negligence in the management of the freight train on the defendant road; and, further, that it was the duty of the engineer of the <I,ittle Rock train to exerciSe due 'care in going over the crossing. to see that his tram did not COme into collision with a train on the traclcofthe other road; and that if; by: the exercise: of due care, he could haveavoid,ed, the collision, then iheplaintiff could not recdver, no matter how great, the negligellce of the defendant might ;have been. The.following instructit:)ll,;wasasked on,behalf of thedeJendant: "It: was' duty of the englneer on the ,train of tbe;Little Rock & Memphis RailrcladtQ.&t9P, look·.and.listel1. before"gQjn:g .over for. trains o.ther he failed, to dQ so, I1ndtbereby Pfo.dqce, . , Tlfe court refused to give the the ground that, unless it it ought be given j' ahd this rnling presents the quescompany in their argution ml1inlyirelied on bY. eounsel for· ment fOO' a new tHaL In; determining whether there ,is or not error in givingr.,or refusingpartiauldr instructions; regard .must be had to the disputed questions of fact arising in the case in hand. A. reqnest may be putinsuch form that, RsanabstractNoposition of law; it may be 'Well enough, of a, given case, it.may be mislead· ing. ,If.thereqnestpreferred by the d'efendant company had been given as asked" the;jury would! ,have understood therefrom that it was the duty of th'eengineer to 'stop his !train. Now, there was some conflict in the evidence as to whetherthepassenger trairhame to an absolute halt at the stopping post, or whether' it nlOved slowly by the same. If the speed ,of the train was, so COrrli1lletely checked that the purpose of stopping was fulfilled, the mere fact tUlit the movement of the train was not,absolutely halted; under the circumstances. of this collision, would not ne«essarily ,constitute, contributory negligence on the part of the engineer. If the .speed 9f the train was checked to such a :degree that when it came to the stopping post the engin.eerhad it under complete control, so that he could properly observe the surroundings and take notice of a train coming upon the 'intersecting line of railway I as readily as though his engine was
KANSAS CITY, FT. S. & M. R. CO. 11. M'DONALD.
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brought to an absolute standstill, then it could not be said, as a matter of law, that the failure of the engineer to stop his train, in the absolnte sense of that term, was an act of negligence contributing to the collision. Without any qualification of the request preferred. the jury would have probably inferred therefrom that nothing short of a stop absolute would fulfill the duty imposed upon the engineer, and that a failure in that respect would require a finding of negligence on his part Rufficient to defeat plaintiff's right of recovery. Furthermore, the request declared it to be the duty of the engineer to look and listen, or, in other words, it declares that it was the duty of the engineer not only to look, but also to listen, for an approaching train. The engineer testified that when his train halted at the stopping post, he looked over on the other line of the railway, and that no train was in sight thereon. All the evidence in the case supports this statementofthe engineer. It may be stated that the point of intersection of these lines of railway is ina heavily wooded country, so that the line of vision is greatly circumscribed. As already said, when the passenger train, having passed its stopping post, started for the croesing, the freight train had not appeared in sight, nor had it reached the stopping post on its line. The theory of the request made on behalf of the defendant· is that, under these circumstances. the law made it the duty' of the engineer not only to look, but also to listen, for an approaching train. , It was his duty to use due care to find out whether there was a train approaching on the ,other road, in such proximity to the crossing that he could not safely attempt to pass over it; but the law does not lay, down the specific means he must employ in ascertaining whether the crossing could be safely attem pted. Our common knowledge tells us that the eye is the organ mainly relied upon in such cases, and, if the engineer exercised a careful lookout, it cannot be said, as a matter of law, that he must, in addition thereto, listen for the approach of a train. If the request had left it to the jury to determine. as a question of fact, whetner the surroundings were such that, in the exercise of ordinary care, the engineer should have,listened as well as looked for an approaching train, then the proposition would not be objectionable, but as it was framed it asked the court to declare, as a matter of law, that if the engineer did not listen as well as look, then he was guilty of negligence. We think the. refusal of the trial court to give the request in the form it was presented was not only proper, but that it would have been error to havt given it without changing and qualifying it, and this tbecou'rt was not required to do. lt is also assigned as error that during the trial of this cause, and in the presence of .the jury in the box. the court received a verdict rendered in the case of eugenia Stoner vs. The Defendant Companu an4 the Little Rock .&Mernl1his Railway Company, which was a suit by a to recover damages for injuries received in the same collision, and in which the jury found against the defendant herein. but in favor of the Little RockCoinpany. It cannot be assumed thaMhe jury engaged in the trial -of the case at bar would understand that the verdict read in their hearing
18Z
DDB:RA.L REPORTER,
vol., 51.
f01'm.JcI>;anypartof theevicililDce submttted'tb.'theiri consideration. As men)"OfJotdinaryintelligence,:they knbwn that the reception of ,intheother case was not part of thetlfialiri which they were'sitting iJ,sjurors, but was a matter wholly asidethellefrom·. The' fact that they obtained knowledge 'of the verdic t in the i$totIer, Ca8e by hearing it read in open court cannot be assumed toba"e affected their judgment in any degree other or different from what would have been the effect, if they had obtained knowledge of it by reading the neWSpapers, or by hearing the record of. the court proceeditigs rE'adin the usual open and public mannerjand certainly it would ,not be claimed that, because the jury learned in either of these waY$ rendition. of the verdict in the Stoner Case, they were disqUlllifi(ld from sitting nSIl jury in the case at bar. SevemVassignments of error are based upon the action of the trial court'inpermitting witnesses to be called in rebuttal whose testimony was inil!lllpport oithat given. in chief, but this was a matter so clearly within the'dillcretion of the trial court that coum:el did not press the point in oml argument, and we need only say that no error appears therein. The case was fairly sent to the jury on the question of negligence on part oitha defendant company, and of contributory negligence in the running:Of.the. train of which the plaintiff was conductor,' and nothing is shown 'impeaching the correctness of the verdict under the evidence, whence it follows that ofright the judgment rendered should be affirmed, at the ,Qf plaintitf in ,and it is so ordered. Affirmed.
R. Co. '/).
PETERSON.
(C(rcuit Court qf .Appeal., Eitjhth Circuit. June 20,1892.)
No. 52. J..lIASTltR AND
The an extra gang of track repairers, whose sole duty it was to super· . vise'the worli:'oftracK repairiiIg over. some lSor 20 miles of the roadbed of a railr:<)aq, company;tolliire the)I\6p 'necessary to work. and to direct the operations of the force so employed, is a vice principal, for whose negligence the railroad company'iB liable, whJre 'a workman in skid gang was injured while under bis orders. RtLilwllY Co; v. 5 Sup. Ct. Rep. It>4, 112 U. S. 877, construed; WOOd. y. Fe4. !l2, 4 U·. l:!.App. 49, followed.
OJ' VIOIl
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I. FELLOW IN Fti:DiniAL COURTS.: 'Aworkmat\, w\\ileactinguilder the orders O'I'the foreman of a gang of track re.}vl\B ,in the state ilf Wisconsin. 1:leld, ill,accor!lunce with the federal adjUdications, the question involving the construction of no statute of the state; that, the '!f'Oreman WMnot, a fellow servant, although' the rule of law was .. ;, ' : : . '
In'Rrror to the 'Circuit Court of the United States, for the District of Minnesota. l:
