661 : /. I
i ';1,(;; ' J .
, r:,r 1
INOn,TnERN ,. :
PAC.
00;,"'. CHAm.m. j':
:1:<: \
" !.' -r':L :t'l"
Cdurf,:ciJ,Appeau,rNLnthiOirCUU. 1 . ;. . , " , .'" .. \ . :, . i j ,
S, 1892.) 1
L
'lI.
It SA,ME-DEpBcnn':APPLIANOES-Duu 0' R,lILRO"D COJO'ANT. ' The duftyrof 'a> Jl8ilroad ,oompaoytll ,fUtnish 'Its! employes With safe and reliable adequate t,o seryioea in t\1ey are Dot be to apqtMr,servant 10 as to exempt from liability tor iOJuries' C8.usedJ bY', itl omission. Nor ,will'the negligence 'of a fellow servaot.exouse the coD/-pany lia,bj.lit,!to 8. Qot, I!-ay;e happened had ,the proper mllPhinery beenfilrnisbed.' " SAM'E. '" ," "T," ," , "
'k rafh'Oad hand'was 'on'a' hand car wttbdthe\" employes, under the eontroland sUJperintelldence' of a section, boss, and: WBB .t the rate of 10 miles an, Qllur. 00 CIU" had peen s#pplied by, the sel;ltio0l>Q!ls, and were deleetive. ' Exira trains were being run over that 'section, Withont noticeto tbeh",nas. i A rapidly moving freight trainappruaohed through a oull and ,.r0\l.0d ll,0 ,Warni.llg,or .Tpe brajl:e on apPIled' without' etfeot;and plaintl1f, believing hImself'in {mmmont peril, lumped, ',r,'ran ove,r,,:,him., He,ldsuJl1cient toW8l',la,IIltl"g"" 08ttw'"ee,It 't, 8, ',I'8,ilB,la,D<t t,lle hand,,'ca, " , , theJllq: ip. company Uaple1 '" ' b,
':1'0, BR1\XQAl'l-l!Jvm;JtNCB.
"
Tile' emplQiel', on the car had a rigllt to el[p(lCt that th()lle in charge of the freight train would give the usual warning in apprOlloohiog places danger; and the negligence of the officer io charge of the train in this respect was not one of , thil '11,"'1'1' and rillkB !las:ume1i' 'b.1 :the, plainti4 to hiB employInent" ,,,' , , ' " , , , I , " "",,'! "I, 'The mOde of examlninr a witness il "lvUbln; tbe:discretton of the' court, atld !it is not e,rror, toaIlj)w WitopeS$ito ,gire his te"tiQlpny Ina narr",tive fprm, and If he states mattetll br'lncolllpeteot it iluty o,f the party objecting ,to arrest the narrative, 8.nd,move, to have suoh te$ttmony,stricken out. 'J,'he.t,el1e,ral ,courts ,have no po\Ver to order avero1ettar YBRDlpor-;I'OWl!!R ,01'" Cou,'r. ,
II.
nonsll-it at, ,the ,close of beffre the latter l1as rested
ICOURTS.:
'
6." BILL ........ TO , ' , A btU of etoeptio!lS which, In respect to certain aclmltted at the trial, '00,I:1tainll' mere"1,1.; the for,maIreco,rd, ",Objection taken,;,' overr,uled;· exo,eptIO.DS aI.. lowed, too gElll6ral to present any queljtiQll review, as the ground ot objection, shouid' be pointed Ont. ,', ,. . "'''. 7., VEBDICT-NBW TR1AL. 'J;'heCQrreQtiOll qf an verl'lict is !4luestion for' the trial court on a motion for a ilewtrial,the granting or reful\iDg' of which wID not 00 reviewed by the federal appellate COurtll. ': : '
Error to thEi Circuit Conrtof the United States:for' the District of Woshington. 'At ActionJ:>y Hngh 'Charless againstthe Northern Pacific Railroad Company for damages for personal injuries. Judgment for plaintiff in the sum of 818,25Q. . Affirmed. . :John error. A. McBrorrm and Pratlter.& Dansan, for defendant in error. Before· DEADY, HAwLEt ,and MORROW, District:Jndges. , 'Oi
f;', i
,
Dil'ltrl.c.t J action was brought 'by' Hugh :Charless, defendant in error, tlie' ,p.laint.iff ,below, tq,recover ;the'sum of, &25,000 for damages for personal injuries, alleged to have been received by him while in the employ of the Northern Pacific Railroad Company, defendant in error, as a section hand engaged at work on the line of the road at a
PAC. R. CO, l!.,,<;JHARLESS.
564:
tED:tRAr; RE£'ORT:tR,
vol.
Tha:t thi!l hand car was ;sufficient fOf its ordinary uses, but'· in case' of imminent danger from collision it was defective in not having a sufficient:brakej which, instead of brake blocks to rub and stop the wheels, was only a short piece of timber· fastened to said car at one end, and made to rub upon one of the wheels by pressing thereon with the foot. That the section boss andrond master knew of this defect, but told plaintiff that the brake was sufficient for the purposes of its use, and plaintiff did not know different until the happening of the accident in which he was injured. 1'hat on the said 28th day of August, 1886, while in the service and employment of the defendant as aforesaid, and during working hours, plaintiff, together with other like servants and employes of defendant, under the direction and superintendency of the section boss, and with the knowledge of said telegraph operator; left Cheney,on said hand oar, going west, being ignorant of any approaching train (In the road from the west,and of any danger to his person on account ofthe running of any trail'l in'that vicinity. That when about two miles west from Chetley, near a deep cut and cUrve in the road, sufficient to. obscure an approaching' train, while plaintiff was standing on the front end of the bitnd car,' working at the lever' propelling the saina, with his' back towl:irds the direction in which they were going, on 'the rear end of· the hand car looking in the section boss the direction they were going, having full charge; control, and direction of the hand car, which was then running 'at the rate of about 10 miles an hour, the sMtionboss for the first time :informed plaintiff that a freight traintravelihgeast was about due at that place. That plaintiff knew that said handcar was then not far frumsaid cut and in said road, immediately became apprehensivef61' his personal safety. That immediately upon informing plaintiff that said train was then about due at said place said section bOss exclaimed, "There she comes nOWj put on the brake I" That thereupon one of the employes nearest ,the brake 'Put it on, and:tried to stop the car, but failed to do so, or to diminish its speed sufficiently, as i(appeared to plaintiff, to prevent a collision with the approaching train, whereupon plaintiff turned to see That how near:the train was, and what the chancesof escape he then saw the train but a short distance from them, 'and approaching very rapidly I without slackening its speed, and it appeared to plaintiff that a collisidn1with the'train was inevitable, and that his life would be lost thereby{unless he did something ;upon thatinstant to save his That at that time there were tools and different kinds of repair materials on the handcar, so arranged along its sides that it appeared to plaintiff that it woul.d be in'i:possible for him to reach either side of the car to jump therefrom to the side of the track, but it did appear to him that he could jUnl}!l'from the front end the side oftheroad, and'a,'oid jury, andwitlithis belief he did jump, with the intention of saving his life. the car, instead of alighting upon his feet on the side ·of the road, 'as he expected, he fell oti We road between the 'rails, and before he could reoover himself the' hand car was about to run over him, whereupon he put up his foot against the approaching
to
NORTHERN PAC. R. CO.
'I).
CHARLESS.
565
hand car to stop it, and prevent it running over him, but the car was coming towards him with such velocity that he could not stop it, and it ran over and upon him in such a way as to break and dislocate one of the vertebrl£ near the middle of his spinal column, and to cause him other great and permanent injuries about his back, chest, and legs. That during all the time the engineer and conductor of the freight train knew of the danger in whichplaintifi' was then placed, and of a collision with the hand car, and of the probability thereby ofinjuring and killing plaintiff; .yet the engineer and conductor of the freight train negligently and recklessly failed and refused to slacken the speed of the train, and continued to run it at a great speed, to wit, of 25 miles an hour, thereby causing plaintiff great fear of immediate death by said train running over him and causing him to make the efforts he did to save his life. That the telegraph operator at Cheney knew that plaintiff left Cheney on said hand car, and that a freight train was about due at that place, going east, and that the hand car, going west on said section at tbat time, would be in great danger of a collision with the freight train, and the plaintiff would be in great danger of personal injury and loss of life thereby. That the telegraph operator negligently and recklessly failed, neglected, and refused to inform plaintiff thereof, whereby he was placed in the position of great imminent peril and danger, which, without his fault, resulted in the injury to him as stated. That defendant negligently and knowingly permitted and caused plaintiff to use in itsservice said car having a defective brake, whereby plaintiff was made and caused to rely on the sufficiency of said brake unlil he had to jump from the car, causing the injuries stated. It is urged against the sufficiency of this complaint that it contains no allegation charging negligence upon the company, or upon anyone for whose acts the company was responsible. The statement of the case made by the complaint is subject to some criticism. It is not in the most approved legal form, a plain and concise statement of facts constituting the cause of action, but we are of the opinion that, taking all the allegations of the complaint together, they in ,effect charge-First, that the defendant was negligent in not providing plaintiff and his coemployes with a suitably equipped hand car for the work in which they were engaged at the time of the accident; second, that under the direction of the section boss the hand car was being run at the rate of about 10 miles an hour when the approaching freight train was discovered iIllmediatelyin front; third, that the telegraph operator at Cheney negligently failed to notify plaintiff and his coemployes that in going west on the section at that time they would meet a freight train going east; fourth, that the conductor and engineer of the freight train were negligent inruoning their train. at great speed, and in not slackeJ,ling the speed of the train when the danger of collision with the hand car became imminent by its approach,-and that failure of the defendant through its agents to use ordinary care in these particulars was the proximate cause of. the injury to the plaintiff. The question .is as. to whether finy one or all of these allegations state a cause ofaction against the de-
J!ilI>ElUL -'REPORTEB,vol. 51.
fefidant;'aMr its deterniinationinvolvellaiconsidetation, ,trhQ genera] ruleexe1tlp'ting,thecommon master from liability to catllsed 'bydthe negligence,rlf ,8 fellew servant in the same employment. To thi8'":Nle'there aresevEll'll.1f important exceptions. ' In Holtgh v. Rail'wo/y 00:, 100 U. S. 213+-217, the supreme court of the United States affirmed ani exception appli<lable here. The court said : perhiJ,ps them,ost importarit,·of those exceptions arises from theobligation 'of ,the I'naste1', 'WMthe1' a natul"al:person or a corporate body, not to expose the servant,w:hen 'conducting the master's business, to perils or haZllrds Kgainst w,hich be gU,arded by proper diIig-ence upon the part of the master. To that e\ldthe mastt-'r is bound to obst'rveall the .care which, prudence anel the exigencies of thasituation require in providing the servant with machinery or other instrumentalities adequately safe for use by tlle latter." In Railrpad Co. v. Rq88,112 U.S. 377-383, 5 Sup. Ct. Rep. 184, the same c9uf'th!'lld .' "It is from liability to his servSl)t for the cQnseq11enAe of that he Shl)\lld himself be free from fur,nishU\e'servant tilt' means and appliances and safe performance, ullless othwhich th.. Sel'Vi,cerequil'eSlodts erwiAt' stil'ulat;"d; snd Ii he' f!iH iii thati'espect; and an injury· result. he is as liable to the servant as he would: ·be :toKstranger. In other words, whilst claimmg.such exemption hemust,n.Qt llil.l'Jl;e!( be guilty of contributory negligtmce." In Railroadeo.v. Herbett;' 116 U. S. 642-647, 6 Sup. Ct. Rep. 590, thisdochine WllS applied' to a: state of facts which serve to illustrate the practical application of the rule where contributory negligt'nce is made part of thedefei\se.' In that\:lltsea brakeman was injured while acting ullder the ordersbfa yardttJl:tster'in attempting to stop cars by means ora brake that was out of fjtder. 'To recoverdalllnges for the injury sustained he Brought an MtiGnagainst the company, alleging that it was its duty Rnd .machinery, and apparatus ofa like-character for and handhng them, and also to makle'i'uIes arid: regu]atione"fors«ritching and hamUillg them in the yard, and for 'noti lying employes' ofthe' cohdJition of defecti ve and broken cars, sottiat they might not Ue subJect to unnecessary dfingerjbut he alleged that the company had neglected its duty in theEle particulars, and thereby, without his fault, bewas injurCdasstated. In its answer the company admitted thiHdlegath))1$ as to the employment of theplaintifl' and the injuries hefhad: received, but set up that it was his duty fo know, and that he did the coriditionof Meh of thecal'S, and that he carelessly puthis"l,eg be-tween settihg the brake, and thus, through his own 'Buffe'red the i:njuryofwhichhe complained. was a verdict for the plaintiffforS2i5,OOO, whiohthe:court, on a motion for new trial,teduood td:$IO;OOO; ".Fhe supreme caurt, in determining the question this',wtitoferror, said: . . . . gElDerid dhctrine' as 'totliel el'emptton cif an' einpioyer from liability for injnries t.o" servant, cltnsect by the negli:!et\ce 'ot a fellow servant ina common eUlploYlil6ut, is wellsl!ttleti. When several persons are thus em-
or
NORTHERN' p,AC. R. CO. V. CHAllLESS·
567
.ployI'd, there is necessarily to the service of each the .others maJ fail in that careaud vigilance which ill'S to his In undertaking the service he assllmps that risk, and, ifhe should sulfer,he cannot recover from his employel'.. He is supposed to have taken it'into ·con:. sideration when he arranged for his compensation. * .... * ·It is equally well settled, however, that it is the duty of the employer to select and retain .servants who are fitte,1 and colllpetellt for the service, and to furnisp sufficient and safe materials, mll-chiner)', or other means, by which it is to be perforlI\ed, and to keep theminrepair and order. This duty he cannot delegate to a servant so as to exempt himself. from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his can be transferred so as to frQID snch liability. The serviuit does not undertake to incur the risks arising from the want of sufficient .and skillful colaborers, or from defe.eLi ve machin-ery or other instruments with which he is to work.. His contraet implies that in regard to these matters his employer will make adequate provision that no danger shaH ensue tohim·. This doetrine has been so frl-'quentlyas'Berted by courts of the hig,hest character that it can hardly be considered as .any longer open to serious question."
InFordv. Railroad Co., 110 Mass. 240, the plaintiff was Jojuredby the explosion of an engine upon which he was employed as engineer. The explosion was caused by a defect in the enl!:ine, due to the. failure Qf the company to keep the engine in proper repair. It was contended Qn the part of the defense that negligence in keeping the engine in repair was the negligence of a fellow servant. The supreme court of Masheld that the GQrnpllny was liable. The court said: "The rule ,of law which exempts the master from responsibility to theservant for injuries received from the ordinary risks of his the negligence of his fellow servant, does not excuse the employer frQ"} th,1' exercise of ordinary care in supplying and maintaining suitable instrumeritalities for the performance of the work reqUired. One who enters the employment of another has a right to count on this duty.' and is not required to assume the risks of the master's npgligence in this respect. The fact that it is a duty which tnus.t always be discharged. when the employer is a corporation, by officers and agents, dol'S not relieve the corporation from the Obligation. The agents who are charged with tlte dllty of supplying safe .machinery are not, in the true sense of the rule relied on; to be regarded as fellow servants of those who are engafo(ed in operating it. Thllyare charged with the master?s duty to his servant," In Flike Co., 53 N. Y. 549, an agent of the company whose duty it was to make up and dispatch trains, and to employ and station brakemen. thereon, sent out a train with two brakemen, when three was the usualllumber required. The agent did in fact employ a third, brakeman, who, by reason of oversleeping, failed to get on board in time. .The train parted, and/in consequence of the want of necessary brakemen one part of the traihran back and collided with another train a short distance in the rear, killing a fireman on the latter train, who was III so a company. The action was to recover damages for' the ,death of the fireman. It was claimed that the injury was to the negligence oLthe brakeman who failed to report for duty, or, if caused by the negligence of the agent in .not supplying the of the
568 defaulting
FEDERAL' REPORTER,
vol. 51.
withan'other man, such negligence 'in"either case as the neglIgence of a fellow servant, for which the CQDlpaJ ,was not responsible. The court held that neither of these positiouswas tenable. In law applicable to the case, CHUlldH, C. J., speaking for the court, said: "'rbetrue rule, I apprehend; is t.o hold the corporation liable for negligence or Qfproper care in such acts and duties as it is required to perfor bl as without regard to the rank of t.he ageilt l,!-,trusted wIth their performance. ·.As to such acts. the agent occupIes theplactl' the corporation. and the latter should be deemed present, and conliable for the manner in which they are performed," employ,apd,'.asinjureu by steam escaping from a locoThe engine was in many particulars in bad condition. was burned out, stay b.olts had given way, its cylinders needed boring out, its valves facing, it leaked badly, and its flues were def,ective 1 its throttle valve leaked, an9 the thrflad upon the screw which served W boid the reverse bar in ,place and thus control the motion of the engfn:e' wis' 'so worn out as to be useless. In consequence of these deescaped from the boiler into the cylinders, the engine in motion, and the accident occurred of which the plaintiff complaihe<1; ,It was claimed on the part of. the defendant that the engine was ftirriisheawi'th cylirider'cocks; that these cocks, if opened, would have allowed the stearn to escape, thus preventing its accumulation in the cylinder and its pressure upon the piston; that the engineer omitted to open the cocks, and w.as therefore guilty of negligence, and that it was this caused'theinjury, and so the defendant was excourt, in upon this defense, said: "But the, cylinder cocks were part of a perfect machine; they were not added to supply the defects, ()r,any of them; to which I have above called attention. Therefore the defend1lnt's contention comes to this: ·We concede that we failed in our duty. We did not supply a machine: but our servant, the engineer. could,: ,notwithstanding, have so managed that the defect should cautle iDO harm.' !fthia, doctrine is accepted it will loosen the rule of responsibility W hieh bear.s none too closely \lpOn corporate couduct. It will seldom happen that unusual care on the part of an engineer would not prevent an accident. In this c.ase he might have opened the cocks, or or with extreme care so separated the engine from its trainthat!theoiwo Should occupy separate tracks. It now seems that it would have to have done Ol}e or the ot/1er of these things. His omission to do somay.have been negligence towards the defendant. but it does not remove attached to it to furnish good and suitable machinerY', !(it-'place it upon & subordinate whose duty is to be measured by thedegl'eec:if skill necessary for its nl'anagement, and who is not called upon to make good the want of corporate care'and attention. OJ The court said further: ,":NeitheJ.' upon ,oon it be held that negligence of the serv,ant in Usitlg' imperfect macilinery excuses the principal from liability to a coemploye foraD injury wbictl colddnot have happened had the machinery been sultiloble'for the use to·w,hich it was it pplied." i
, In in
lIiORTHERN PAC. R. CO. V. CHARLESS.
569
Numerous cases might be .cited to the same effect, but it will not be necessary to multiply authorities on the point, since the law is well established by the supreme court of the United States and by the highest courts in many states that the absence of superior rank or title in the intervening servant or agent will not exempt the master from liability for injuries resulting from the use of defective machinery or appliances. Tested by this rule, the allegations of the complaint in the present case concerning'the use ,)f the defective hand car ata high rate of speed under the direction of the section boss, in the manner described, whereby plaintiff was injured, state a cause of action. The complaint being suffi. cient in this particular, we might stop here, but we will notice briefly one of the remaining allegations, for the purpose of referring to another feature of the question where the liability of the master, according to some decisions, may be determined by the character of the duty required to be performed by the servant. The telegraph operator at Cheney is charged with negligence in not notifying the plaintiff and his coemployes on the hand car of the movements of the freight train, the danger of a collision with which caused the plaintiff to jump from the hand car, whereby he was injured. It was the duty of the company, as admitted in its amended answer, to furnish its employes engaged in maintaining its track and roadbed with information concerning the movements of trains over the sections on which they were employed. In the present case it is alleged that this duty was required to be performed by the telegraph operator at Cheney, but the designation of the official is imma· terial. It was a direct, positive duty which the company owed such employes as were exposed to danger by the movement of trains. In Leuri.8 v. Seifert, 116 Pa. St. 628-647, 11 Atl. Rep. 514, it was determined that a train dispatcher, wielding the power and authority of a railroad company in the moving of trains, in the changing of schedules, or the making of new ones, as exigencies required, is not a fellow servant with a train employe. The court, in its opinion, said: "It is very plain that it was the duty of the defendant company, as between said company and it!! employes, to provide a reasonably good and safe road, and reasonabiy safe !lnd good cars, locomotives, and machinery for operating its road. It is equally clear that it was its duty to frame and promulgate such rules and schedUles for the moving of its trains as would afford reasonable safety to the operators who were engaged in moving them. This is a direct, positive duty which the company owed its employes, and for the failure to perform which it would be responsible to any person injured as a consequence thereof. whether such person be a passenger or an employe. It would be a monstrous doctrine to hold that a railroad company could frame such schedules as would inevitably. or even probably, result in collisions and loss of life. This- is a personal, positive duty; and while a corporation is eompelled to act through yet al/;ents,in performing duties of this eharacter, stand in the place of and represent the principal. In other words, they are vice principals." Weare aware that there are decisions holding that a telegraph operator does not occupy the position of a train dispatcher merely because he transmits or delivers the orders for the movement of the trains, and that his negligence cannot be said to be the negligence of the company;
FEDERAl. REpORTER,
vol. 5!.: ,i.
··
'15th
l\eCIJSSarYi In thisconheetidn,; ito the actual duty of a covered in)he the til the complalllt, .lJ;nd.upon Ri-ful",M'[li1 the demurrer: these ,allega;tions mU$t be .accepted as true. Tl!Iijrpbtht'Ji$ that the' duty of keeping- the empleyftSon the sEjction in.. fotmed :8,$; to: the movement . oftiains :)o",er .that ·eeo,ticm was a positive dlrt.Ytte¥ol vil'ig u p<ilri tim, pornpariy ;, andi, where injuries are sustained by relil!loo'bf'negligeneEdhdheperformmree ofthnt ;duty, the company is li8iOle. uTheeomplaint,beingsuffipient in the .partjculars mentioned,
tbenrst
I
'.'
..' .
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that; tihetplaintiff waS ,allowed on the trial to'ffla;k'e R fstateme1'.lt in:narrativeiform, 1lo9,awitness in his own behalf, withotit:being specially linterrogated. by: 'hi!.cQunsel· in reference to the partioUla1'.matters involvea in the caSe; . that th:estn tement m!;l.de ill llucha'wriyias ,t,daffordtQ,6defendant no opportunHyofmaking any abjeetiooltoiRI'lY:particulart 'pqmQ.tl".lind: was allowed .to be made over thl1 that;it cqntainell D.19.tters immaterial to the. all;d as being;'he/1rsay; ,and "t;lotthe befltevidence. It appearll from' the: record that 'after: a, fewpreHminal'y questions the. plaintjff' was askertthl:l'following counsel:, to .the jury, and tell themthl:Ffacts'in this case,cominencingat. the time of your employmenfwitli: the NiOrther,tl'lPacitic Railrbali!: ,Company, and tell them the com pll.'tecstory." 'To tllisuquestiqn no objection was made. The plaintiff proceeded torMate the. faetsin the case as requested. After stating <the /particulars' bfihis'employment, th.e use of a hand car, :the method iof stopping it. andthebreakingiof one of its wheels, counsel for defendant objected. tOthei courSe in which the taking of the testimony the witness was' making. a statement was ofmatt6rs immaterial t<> .the issues involved in the .case, and incompe. tent as being llearsay;and not the best evidence, and that he desired to interpose suchobjectiolls, but that, owing to the. fact that the testimony wasbeing:WVi:lD in was given counsel to properly interpose ·. ,The, court replied to \his objec.tioli that thp,,:t;akinjl; of the witness' testimony in the narrative form would 'be the best Wtl1ofgettingill.t what'heknew or could state concerning the at it ",611ld save timetoproceed in that way, and tQ the jury arnoi'e'conllected statp,ment of the he tol{asit Occurl'ed and tpokplace. It the diseretion of the court to allow the witness. to give his in a nanativeform. .Thomp.TriaJs. §354. In general. this practice is commended Mr;. Chitty,. in speaking of this method of examinjng . . .when tbetiple and place of the. scene of action own. :account of the have once been fixed. to desire the witness to give matter, directing him, when not a professional person, to omit, as he prohehaa onlyhea,l'd;from and noL,!leen or heard himself,' he is apt to suppose is quitt! as material as that which he himselthas seen." ,·The;author says further:
'/ il:1ri'll
NORTHERN,P,A:C.' &.00.·
"!tis difficult·. therefore. ,to the. important parts' of hb ,evidf'nce drawn to thetransactiou by asking piecf'meal, but if his him whetialld whl'fe it happelled, 'and he be told to describe it from the be. ginning. he willl!enerallyproceeJ' in his oWn war to detail all the facts in the due order of time." 3 Chit. Gen. Pro 894; But if, in the. giving of such testi,mony, the witness states mattersirrelevant or immaterial, or incompetent as being hearsay, it is the right to interpose and arrest .and duty of counsel objecting to such the narrative by calling the of the court particularly to the ob· to strike it out obtain a ruling jectionable matter, and by a of the court excluding such testimonyJrom the case. Gould v.Day, 94 U. S. 405-414. "It is the ,quty of a party taking exception to, the admissibility or evidence to point the part out excepted to, when the evidence consists of a number of particulars, 80 that tbe attention oUhe {lourt may be drawn to the particular, objection." Moore V. Bank, 13 Pet. 302-310; U. S. v. McMasters, 4 Wall. 680-682. "It is the duty ,of the party to select the incompetent from the competent testimony, and to point out in his motion the specip.c testimony objected to, as well as to indicate the character of the objection." Thomp. Trials, § 719. It does not appear that counsel for defendant was deprived of an opportunity to make such a motion, and the proceedings cannot be considered as error. Errors are assigned that the court allowed the plaintiff and another over the objection of counsel for dewitness to answer certaill fendant. These questions related to and made inquiry concerning the power of the foreman, Kirk, to hire .and discharge men; whether Kirk or the telegraph operator or anyone told witness that they would meet a train; and as to the sufficiency of the brake on the hand car. ,The objection to each question, as stated in the assignment of errors, is that "what was sought to be shown thereby was not admissible as evidence by reason of being irrelevant, immaterial, and incompetent." This objection was not, however, incorporated into the bill of exceptions. All that appears there is the formal record: "Objection taken; overruled; exception allowed." The evidence called for appears to have been relevant, material, and competent; but the objection, as stated in the bill of exceptions, is too general to present any question for review. "Where evidence is objected to at thll trial, ii the party would save an exception to the ruling of the court if adverse to him, such as will be available on appeal or error, he must frame his objection so as to bring to the attention of the trial court the specific ground upon which he predicates it, and this must be stated in the bill of exceptions." Thomp. Trials, § 693, and cases tht>re cited. When the plaintiff had closed his testimony and .rested his case, counsel for defendant moved the court for an order dismissing the case, and for the nonsuit of the plaintiff. The motion was denied, and the action of the court in denying the motion is claimed as error. The refusal of the court to grant this motion was in accordance with the estabJished practice. It has been repeatedly decided by the supreme court
572
'PtmEltAL REPORTER
,vol. 51.
thatco'udil'ofthe United States have no power to order a peremptory the wmJ)f the plaintiff. ; Elmore v. Grymes, 1 Pet. 469 ; Id. 476-496; Crane v: M0rri8' Lessee, 6 Pet. 598-610; Silsby v. Foote, 14 How. 218-222; v, Bullard, 23 How. 172-183. It is also assigned as error that the court should not have required defenda.rittO i proceed to its defense after plaintiff had rested his case, but should have directEld the jury to return a verdict in favor of the defendant.'That motion,however, does riot appear, by the bill of exceptioos;ta have been made by'counsel for defendant; besides, he proceeded 'with the defense. and introduced testimony in that behalf. This action on, his!part effectually disposed of all question of error. The refusal the court to instruct the jury at the close of plaintiff's evidence that he was' not entitled to recover could not be assigned as error, even if the proper :motion had been made, because the defendant, at the time of reqriestb!lgsuch instruction, had not rested its case, but afterwards went on, arid iI1troduced evidence in its own behalf. Railway Co. v. Cummings, 106 U. S. 700, 701,'1 Sup. Ct. 493; Insurance Co. v. Crandal, 120 V, S. 527-530,7 Sup. Ct. Rep. 685; Robertson v. Perkins, 129 U. S.233-236, 9 Sup. Ct. Rep. 279. of both phrties having been concluded, defendant's The counsel, by motion, requested the court to direct the jury to return a verdict in favor of the defendant upon the grounds that the evidence submitted on the trial of the case was not sufficient to establish the liability onlle defendant for any injuries sustained by the plaintiff; that it appellred from the evidence that whatever injuries were sustained by the plaintiff were occasioned by his own negligent and careless acts and by the negligence and carelessness of those' who were fellow servants with him,' in the sarrieemployment; and that it appeared from the evidence that whatever injuries occurred to plaintiff were without the fault of the defendant, 'or of any of its servants or agents or employes'for which it Was responsible or liable to the plaintiff. The court refused todire<!t the jury as requested, and the denial of the motion is assigned as error. 1t is well settled that the court may withdraw a case from '. the consideration of the jury, and direct a verdict for the plaintiffor the defendant, as the one or the other may be proper, where the evidence istiridispltted; or is of such conclusive character that the court, in the exerCise of It sound judicial discretion, would be compelled to set aside a verdict in opposition to it. Railroad Co. v. Converse, 139 U. S. 469-472, 11 Sup. Ct. Rep. 569. Does the present case come within this rule? The evidence introduced on the pa.rt of the plaintiff tended to prove the following facts: Plaintiff was employed by the defendant in section work Ullder a foreman. When he went to work, the hand car in use on the sectiop.hadno brake attachment, but was stopped by means of a stick inserted between the spokes of one of the wheels. This stick was used for this purpose until Kirk became foreman of the section, when one day, in attenlpting to stop the car to get out of the way of a train following rapidly behind it, the workman performing the duty of stopping the carby this device struck a spoke in a wheel and the stick
NORTHERN PAC. R. CO. 'D. CBARLESS.
573
was knocked out of his hands. They had difficulty on this occasion in stopping'the car, and a narrow escape in getting it off the track, but they worked along in this way until a wheel broke off, when Kirk, the foreman,ip'pIJed to the road master for a new car. He failed to get it. The disabled Cfl,r was thereupon repaired by an old wheel in place of the broken one, and the foreman nailed a stick on the side of the car for a brake. The upper end of this stick being pulled back, its lower end pressed upoDooeof the wheels, acting as a brake. When the foreman placed this stick on the car he called the attention of the section men to it, ,and said : "Now it is not like the last brake. It is good and solid, and cannot get away from us. It is a big improvement on the last one." They did not, however, meet a train with this car until the morning of the accident. That morning an extra freight train came into the station at Cheney. The section house was about one fourth of a mile east of the ,statiQn. The section men waited awhile for tbis train to pass. It did no,t, but stopped at the station. The foreman, Kirk, with plaintiff and the other section, men, went to the station. From this point the testimony tending to prove the circumstances immediately connected with the accident maybe stated in the language of the plaintiff, who testified as follows: "We went to the station, and, when we went by, Kirk told us to stop; that he wanted to go into the station, and see about We stopped, and went to doing something like shoveling cinders while Kirk crossed over. This train was on the' inside of tbe station from us. He crossed over the train, and went as far as the station. I would not swear he went in. After a while he came back. He said, 'Boys, get on and go to work.' We got went to work, and when we got about one and three quarter mile.-we were nearing a cut, and where the engine was supposed to whistle. This tbird mile commenced with tbat cut, and from there tbere were cuts and cUrves and much tim ber along the line. There were fires along there, which we putout, and lots of smoke, and besides it was misty and foggy. Wbenwe got out here,-one and three quarter miles,Kirk says: · Boys, this is, fast running.' They told me that this train, at ,the tpey could see another section between bere and Sprague coming behind, them; that it was coming at a fast rate, to make somepoint in Montilna. It was ruuning extra fast to make this point.' 1 turned around, and the men done the same, and tried to stop this car, which I believe wasronning about ten miles or so. We tried to stop it, and this man at the brake-it had been so loose, he al ways had to hold it to keep it there, whethE)r braking the car or not...,-this man put on the brake; and 1 was on the west end, going, out towards the train. The rest were on the east 01' hind end. '.rhere was no one on tbe front end but me. This man put the brake on, and I tried at the pump handles to hold on to Btop it, wben he said we were going too fast. He said, · It must be pretty close on us now;' and I tried for a while to stop it, and in or about the time that he told us the fast train was coming, he looked and said: · Boys, here she is. It is right onto us. Get on .tbat brake, and get the car off before sbe comes on us.' So we used the brake and handles, but we saw it was coming to no stop, or not likely to, and I looked to see behind me if this train was near, and at the' time I looked it was about one bundred feet, and I believe nearer than tliat. I ,saw there was no sign <If the car coming tQ a Btop. There were sbovelsand picks' and sledges and tools of different kinds, and the
pqtr ting 9f1
of tHe I made an effort to 'jutbptt> 'the side 'oftlfiJ ·car. but sa :the Wheelctimes' over tMr'cartt Was 'notlfeHSY"tlil jump!a:cross.;:l tried to jump 'ovt'r. the end, and I diclmot,get as far, astM,raiJ onthe>:side, as I jump!ld ,to the sOllth. 'fhll theclJr .onthe sipe of {'n4. me right to.raise my feet' and stop it, but . thecal' raliglltmy foot, and it was coming so fast that it wlis'of noa,vail...·... It doubled me ovei.' and cram me up,tUld,put my lleadwhere myf.l'et were.-turned,me over. Theotht'f·)'eg wall ,Mllght in the CQgQf. the wheel.. ,., J ;bwllght, the car to' a st,-nl. and the off. lying Qll thegmvel. One of me n ll()llel'ed me. , ·Arer,ou,.hurt?' Kirk said: · There is IJ-o time. for tbis. G,et, 1l,old,ot the . ana. it off the before the train over. SQ they 'got hold of the hind end, and caught it up, and run at'ound WIth It, and po'lTeUitdown the roadbed after tl'1em;and so when my'head was towards th",ritil by their turning the car around the engine went by and. blew sand ,luld 'dirt onto my,llead. J3y the time ,they got arpuud. this cog wheel turned R different way, and released my pants, so that I fE'll out, lind Some of them holl.l'red to train to stop and come back, but the train ran past quite.!l,w81s.and me up;andcllrripdme put IDe on and left me at the stat)Qn, which was Omeney." Plaintiff'fur,ther in substanc'e upon direct inationi' among other things, that there was a crossing near where the apprdll.bhing train was at the time of the accident; that plaintiff did not hear.'the. engine, \vhistlej .that if it had whistled he would have heard 'itjtp/l-tthe freight train was Tu'iming at the rate of nearly 30 when it. passed him after that as soon as Kirk noti6.ed themenou the car thnt a train waecoming they took means to stop thecal' bY':the man at the brake bearing down on it; that the brake was,apiei:Je ofelabthat Kirk had picked up, about two feet six it;tothe,side of the between the front and hrinq wheels,about five or' six inches, ahead' Of the wheel. The wide the st.ick ",as tothe side ot the.car,'w;ith a nail driven through it, and the narrow side was to ,take up and .hold by, and by holding down with the hanel,the brake was appliedito the wheel. The side of the stick. towards the' car was about three' inches wide, but the side that' l'llbbedon the wheel wasnbt two inches. The wheel was about 'The pJ,a,intiff never qb.iected.. to these appliances, Dor,tothe conditipp :9f the, car. He did what he was told, and worked the best he could.· As faraethe car was; concerned , he did not claim to have known any,thing, beoause it was his, opinion when they put on thebr!tke it was first class. Had been told since'thatit was not. was irit!rod.uced'by.plaintifl , " Inadditipu to' the tending. op the h!1:nd not a goodonej that if it .had baena good brake it could,.haveetppped the handcar in time for.'1>laihtUfto:have got offj, tbfl,tthe brake operated only on
,.! saw of pl,nU', andnoWhlSrle ,b,emg m'llde;
ii']lltp.e
,I,
feet,
()f thi,g
NORlL'HERN PAC.n.CO.
575
thllt,the cog that the Cllr. was ll. patchedup car; that the ;cQt near whe're the accident t;:>ccurred was, 2b' feet high, and toatthe, the approaching train did not whistle before tering the cut; and tbat there was a telegraph operator at Cheney. It it was the duty to furnish th!:! track and 'roadbed of defendant with neoessary informatiQIi as t6 the passing of trll.ins on the de,fendan,t's rQ/l,d.' " . . ,,'. "'" '. ,The testimony, QI\l the part ofthe defenS,e tended to prove that the se,ction On which plaintiff was emploJed was the easiest, on the division; that the appliances for the hand car-were good for the section; that the lever :brake On tPe Car at the time of theaccio(mtwas as goo(i, as any in t,hat it rubbed on the top of tbe hind wheels and the 'lower' riill 'of the front wheels, and by itS application on the qccasiop, }he.car had alrnost stoppedw1)en Chadesewent the cut near where the occurred was·' frQmsix to eighr feet liigh,ana 'persons it at one' coula see across of the cut and curve to the other It will xlot .refer'furtherfo the testimony6n the"part?t' th,e been 's,tateu to show' that it cpnttadicted th'e mony on t1)e .part of the plaintiff in many partict.lars. It was theprovince of the jury to weigh this conflicting evidence, and determine the actual fllcts. It was a fair question for the jury to determine from the testimony whethetthe'accident wonldhave happened if the defendant had used (>rdinary cat:ein the. plaintiff andllis coemployesoll the section with,s hand ca,rsuitably equipped with a safe a.nd 'eifeGtive brake for ,the work in which they Railroad Co. v. Young, 1U. S. App.96, 49 Fed. Rep. 723-725. It was also a fair question whether the accident would have happened had the defendant used ordinarycate in the movement of its trains, and in notifying the section me'Il of tbe apprOlibh and passagedf such trains. v. ives, H4 U. S. 408-:417, 12 Sup. Ct. 679 l plaintifl"s intestltte was, kille¢! by a rail way train a street crossing in the city of Detroit. In the court below the question of negligel1lle or want of ordinary-care and prudence was submitted to the jury to decide. The supreiliecourt held that the instruction to this effect was' correct, . and in defining the province ohhe jury in such acas6.said: "There is no fixed standard in the law by which a court is trarBy say in every ease.wbat conduct shall be considered reasonable and prudent. and, what shall constitute ordinary: care, under any and ,all circumstanct's. The terms ·ordinary' care,' ·reasonable prudence.' and such like terms, as applied to the conduct and 81ffair$ of men, have a relative significance, and cannot be arbitrurily defined. What may be deemed ordinary care in one case may, 'under diffl/rent surroundings and circumstances. be gross negligence. The poli'Cy of.the law has relegated the determination of such qupstiolls to ,the jury, under proper instructions from the court. It is their provinee to Dote the speciaL Circumstances and sunoundings ofeach
bIJe'wb'eel{IUid:that wheellOose;that wMelson the carwete not mates; and two' did ·not belong: J6 i fhe,
576
or:n:DERAL REPORTER; vol.
51",:"
and then say'.hEltberthe in that case was such be men, a similar state of afgiven of facts,is such men may fairly dUrer .Qpori the question as' to wbether there was negllgence or not, the determinatiOn of the matter is 'for the jury. It is only where the facts are such that all reasonable Dien lIlust draw the same conclusion from them that the questWbofnegligence is ever considered as one of law for the court. RailroadiOo. v.Pollard" 22 Wall. 341; Rail1'oad Co. v. 139 U;. S.469, II Su,p. Ct.. Rep. 5G9;Xhompsonv.Railway Qq.,57 Mich. 300, 23 N. W. a20; Railway Co. v. Mille1., 25 MIch. 274; Railway Co. v. Van Steinburg,' 17 'Mich.' 99, 122; Gaynor v. Railway Co., 1'00 Mass. 208-212; Railroad q(). v. Picksley, UOhio St. 654; Rail1'oad Co,, v. Ogier, 35 Pa. St. 60; Robinson v. Cone, 22Vt. 213; Jamison v. Railroad Co., 55 Cal. 593; Redf. R. R. (5th.:td.) S 133, p. 2; 16 Amer. & Eng. Ene; Law, tit·· Negligence,' 4021 and 3utborities cited in note 2." , We think,. upon the in this case, the court below properly denied the DlOtionto direct the jury to return a verdict for the defendant. Exceptions!Vere taken to the following instructions of the court, and the giving ofeach instru,ction is separately assigned as error. They will be considered together: . .. I thinktbat the when stripped of all the side issues, and the incidental questions surrounding it, resolves itself into just this question for this jury to determine :Whllther the injury to the plaintiff resulted directly from the negligencedf the defelldant in' nee41essly him to the danger of being hurt by a collision between the hand car and the extl'8 freight train at the place where it occurred, or whether the injury was a mere accident, which W3S the result of one of the ordinary of the employment in which he was engaged; wbether it was an ordinary: J;isk of .bis or whether an extraordinary danger, caused by a negligence on the, part of the defendant; wbether that negligence was a negligence of the foreman in running the hand car too fast lip to a point which he to be dangerous, and which he did not warn the other men working on the hand car of. so that it was impossible for them; without extreme hazard to their lives, to avoid a collision, or whether the..Qegligence the part of, the otlicers ip. charge of the freight train in approaching a euryein the cut, which obstructed the train from view, or passing a pUblic ,withoutgiving the whistle or engine bell. If in ahy.'of these respects there w8sactual neglect on the part of defendant, whichplaced'the plahitiffin a situation of extraordinary danger, something clearly, beyond the ordinary risks of his employment, and his injury wasllot in anyd.egree owing to his own negligence at the time, the defendant would be liable to damagEl$, and be liable even though the plaintiff, when ina situatIon QfJmminent andaPl'arent danger, may have made a mistake on his part in attempting to escape from the danger, as byattempting tojtimp intbe wrong direction. Even a mistake of that kind, happening at a moment ofextt'eme peril, would not be regarded as reckless or negligent act on the Pl1l't of plaintiff which would preclude him from recovering damages. But if, on the other hand, this injury to him resulted from his own act in attempting to jump from the himd car at a time when it was his duty to have remained on thelland car, and assist the others in checking its speed. and removing it f'fom the track, 80 as tog.et it out of the, way, and when he had no reasonable cause to regard himself as being in extreme danger; or if the defendant'was entirely guiltless of any negligence; if the foreman was not guilty of imprudence in running the hand car at the rateit was going; if the
NORTHERN PAC; R. CO. V. CHARLESS.
577
freight train did not approach a curve or crossing where it was the dnty of the engineer to give warning,__so that there was no negligence on the part of the defendant,,-then your verdict should be in favor of the defendant. If the jury find from the evidence that the hand car in question was a necessary implement in the carrying on of the company's work, ami that the said hand car was not sufficiently provided with a sufficient brake to stop it within a proper and reasonable time when in danger of collision with other trains on said road. of which defect plaintiff had no knowledge, and could not reasonably be required or expected to have such knowledge, and that by reason of such defective brake plaintiff was injured. without contributing his own negligence to such injur.v, then the company is liable to plaintiff in damages for such injury. If the jury find from the evidence that plaintiff was injured by or on account of defendant's negligence, to which plaintiff did not contribute by his own negligence. then the fact that the negligence of plaintiff's fellow servants contributed to such injury is no defense to an action by plaintiff for damages on account of such injury." It is objected that the questions so submitted to the jury were not put in issue by the pleadings, and that there was nothing in the evidence to justify their submission by the court to the jury. Much that is said in support of these objections was urged in effect against the sufficiency of the allegations of the complaint, and in favor of the motion to direct the jury to find for the defendant, and need not be further considered. It is objected, however, that the instructions contained the statement of certain situations in the alternative, the existence of anyone of which rendered the company liable for the injury of the plaintiff. Two of these remain to be noticed: (1) Whether there was negligence on the part of the foreman in running the hand car too fast up to a point which he knew to be dangerous, and of which he did not warn the other men working on the hand car, so that it was impossible for them, without extreme hazard to their lives, to avoid a collision. (2) Whether the negligence was on the part of the officers in charge of the freight train in approaching a curve in a cut which obstructed the train from view or passing a public crossing without giving warning by sounding the whistle or engine bell. Standing alone, the first situation would seem to involve the question as to whether the foreman was a. fellow servant of the plaintiff, but the conduct of the foreman in this case in operating the hand car cannot be and then existing condition of the wholly separated from the car itself. Had the company furnished a new hand car, with proper brake appliances, in place of the broken and disabled car, or repaired the latter with a new and effective brake, the imminent danger of collision with the freight train would not have occurred. The defendant is not liable if the negligence of a fellow servant is the sole cause of the accident, because, being a fellow servant, his negligence is one of the risks for which the defendant as master did not assume to be responsible. But negligence of a fellow servant does not excuse the master from liability to a coservant for an injury which would not have happened had the master performed his duty. Railroad Co. v. Young, supra. The situation indicated by the court must therefore be considered in connection with the surroundings and circumstances of the case, and particuv.51F.no.9-37
larly:.Uhirespect oo,tlle' to The jury Cduld'ltlot :have' :fellture of the case" und er the, in\.: s'tructidlhl$ gi:vetl, atld,' taken i¥ti coti,tlectionwithotlier we
()f P,l,alljltlff. '··' ',,' :, ' . .: ,sa,meques,tipnwith respect to the oonduct of!theloonduct0r, and engineer of ,t.he'freight train, and ita180' necessa:riIf.'inVolves the 'questiofi !b 'to the cMdi1ion of the hand car;' On of. t.he, , bys.aymg t?at that th,e,h,aPP"carwasproperlyeqmppedw1th allaf,e; tbat men would"therefore be able to esoape'diioi:Q. 'tl1e'ltrack with thee8.l'in time to :avoid a collision. It: was tbe duty of those in charge of the freigh':t> train to observe every rul&'of fqIl tIle; their :3n4 the tqe l,.ad ,to usual warnings i,lr fof In 112 U. S. '377, 5, ,Sup, .Ct.,:lWp, i 184.,., t46 liltl;Jility raUway com,pany for tbe. negli-' gl;lQce of a. trail)., ;cemduct.or WIlS and,it ;was there hfl w;:t.S 110t the of the oiher employes of th-e qn the of laW! d,ec]are<Un that case: would, WJtennine and pf.!J freight train.were was the plaiJrWf int4ilii qasejQut it is not,l1ecessar,y to pass upon;,tpatquestion here i,11 view of., the otber: attending the; sjtuation. },!oreover, is evidencetepdiQi§ 1q freightJrainreferred to in the of a specialfl'eigbt tJ;ain, running;";ltt a makefjlqprerPQint in,:Montana. Itw8llrunni\lg extra flt!>t W tbis point." Clelitrly of.sucha, traip ml).st have beel)l,1IlUar#le<1irectipp,Q(an offic!3r '!clpthed wjth tll,e control and agemellt distin,ct the negligllnce of the officers in charge of such a train iii not giving the usual warning in approaching a <mrvl;ljn a orin a one of the usual liJ;li<J mdirrariY: ,!lSincideptto employment. th.e py:t1w inj?>tr)lc:by: in:uQ!'ldiate!y precedillg whicp, <"" ' tJ1ai the forem!J-q,
a fellow,
rebb"er damages'
i'c"To explain
nl>gUgence, on .lJoe part'of defendant part" capsed by op. t!16 q{ plaintitI;<:ann()t.recover dawllgell, 'by employes against t1ier$llloyer that thnmploye,as a. pa;rt o£ contract of empluyment w.ben . ttues'ihr6 tlle serv!be;'lisstltl1es' onfl'is 'pltrt tIle risk's "an<I dangers that' are th&.serviceinwhiel.l'i he engages,', He-also assumes on his! parti th.athei/lcolJli>etent to perform ,tlhe ser'liclfwhich. he undertakes to that ,he bas 'sulfieient and, ents ,·t.hough i:\tIwre
if the injury to liitnself' :wias:in ;part 'oWU1j:flJo 1119,O\\1n: nl'gllgaoce;'{or; '-in 'law; contributory
J
thati
fUlly;' it the pliihtiff
prInciple in all sUitstd
579"· and to.]p<>k 01Jt himself against injury resLllting from the\lse',()f such tools as are suitable and proper. And it is his duty, if he.is handling impl,lfments whiCh he. knows give notic,e; it to his' employer; and ,ll' failure on his part to perform the duty of would absolve from liability for injury from' sucb defect." ' tile The following instructions, among others; were also given byreqllest ofcot,l'nsel fb'r defendant:' . ',;" , '''1!hejUry'are1nj;ltrrtcLed that the deferidant was' not aguarant9rof the sMetYQf its oiitcp.inery and llppllances, and\vas only boulld to use ordinary in theseleetion. and arl;ailgement and care. tllereof, and care and to lise aI1d employ ,such all the experienceo! trade and had a. ture Sanctioned as reasonablY'$afe. The defendimt was not and is not bound as an employei- to insUre tHe absolutt' safety of the machinery or mechanical appliances which it provided or provides fO!' the use of its employes." ,nor was it bOlmd to supply the best and safest or newest of appliances for the purpose of st'curing the safety of those who are employed by it. If the plaintiff himself was wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence. and defendant is thereby absol ved, from responsibility for the injury, although it was uccasioned by the defect of the machinery or appliances through the , negligence uf the defendant." We are of the opinion that the instructions, taken altogether, and in view of all of the circumstances of the case, were fair and reasonable,and of the rlefenrlant at every point As was said, by Judge BREWER in Crew v. Railway Co., 20 Fed. Rep. 94: "The question in all such cases is not whether some technical error may not have crept i'nto the inJltructions, but whether. taking, the case as a Whole, and looking at the instructions as a whole. it is apparent thattqe law was presented fairly lind to the jury."
he is required to use fin the service to know When they are safe.l'\nd
It is assigned as error that the court should not have denied defendanf's motion for a new trial, and should not. have rendered any judgment in favor of the plaintiff. In the petition for a new trial the grounds aileged in that behalf were; accident and surprise" which ordinary prudence guarded against; newly-discovered evidence material for could not defendli.Ilt, which it could not with reasonable diligence have discovered and produced at the trial; insufficiency of the evidence to justify the verdict, and that the verdict wa.s against the law; error in law occurring at the trial, and excepted to at the time by the defendant; and excessive damages, the award made by the verdict appearing to have been given by the jury by reason of passion and prejudice. The overruling of a motion for a new trial is not a subject of exception under the practice established in courts of the' United States. Parsons v. Bedford, 3 Pet. 433-445; Minor v. Til/OMan, 2 How. 392-394; Barreda v. Si18bee, 21 How. 146;...167; Insurance Co. v. Folsom, 18 Wall. 237-249; Railroad Go. v. Horst, 93U.S. 291-301; Railroad Co. v. Ji'ralojJ, 100 U. S. 24-31; Newcomb v. Wood, 97 U. S. 581--583; Missoul'i Pac. Ry. Co. v. Chicago &; A. R. CO;, 132 U. S. 191, 10 Sup. Ct. Rep. 65; Fishburn v. Railway Co., 137 U. S. 60,61,11 Sup. Ct. Rep. 8; Wiloon 139 U. S. 616621, 11 Sup. Ct. Rep. 664; Irururance Co.v. W{1rd, 140 U.S.76, 11
v,
580
FEDERAL REPORTER, vol. 51.
Sup. Ct. 'Rep. 720; Railroad Co. v. 'Winter, 143 U. S. 60-75, 12 Sup. Ct. ReP;: In the last case the supreme court states the province as "-vy'h,etllerthe verdict was excessive is not our province to determine on this writ of errol'. The correction of that error, if tbere any, lay with the court below upon a motion for 8 new trial, the granting or refusal of which-is not 3$signable for error bere. .As stated -by us in Insurance 00. v. Ward: · It may be that if we were to usurp the functions Ilf tbe jury, .and deterll\inet\1eweightto be given totbe evi<Jence, we arx:ive at a different that is not 0llr prOVinCe on a w!:it of' ertt?r.. In such a case ll0!lflned to the. consideration of exceptioJ;ls, .takeii. at the trial, to or. rejection of evidence,8pd to the charge of the court and its. '.tocharge. We. 'have no cmicern with questions of fact, or the given .to the evidence which was properly "
Judgment affirmed.
, .,
,Court, N. D. OMo, E. D. May, 1892.)
GU1'lIsml:uNT-"FoREJGN COiU'ORATIONS.
:UAdeJ' St. Ohio, §§ 5532,553,1" a,nonresident corporation, business . in the state, and having alnana/ting agent there, is SUbject to garnishee prooess, equally with a domestio corporation... .
At Law. Action byW. J. Ra:ineyagainstJ. B. Maas, in which the HUmboldt Iron Company was served with garnishee process. Heard on motion of the garnishee to discharge the proceeding against it. Denied. Shr:rman, H(Y]ft&: Dustin, for the motion. Cdrr&:Dickey I contra. BeforeiT.AJi1T, Circuit Judge, and RICKS, District Judge. l' <,
"··TAFT, ,Circuit Judge. This is a 'motion by the Hijffi Iron Complliny, a garnishEje., to dismisstlle. proceeding in garnishm!)ntagainst it on the ground that ,it is l!-. corporation, and not subject to gar. nishment Or ,attachment under the laws of Ohio. It appears that the corporation, organized lllli!er the Humboldt. Iron Company is a laws of Michigan,and doing business in that state; that it has an office in the city of Cleveland, 'wbereltlldirectors and stockholders hold their meetings; that its record pooksand books of account ,are kept in Cleveland; that the product ofits mines is shipped to and sold by said company in and tha,t the proceeds are collected and distributed from its office:jn Clevelandjthata majority of the stockholders live in Cleveland; tha,t only one ofits directors lives in Michigan j' that its president Uves in New York, and that its, secretary and treasurer, who was served with the garnishment, .lives in Cleveland. 'fhe answer of the garnishee shows it to be indebted to. th.e defendant in the sum of $35,000, which
