'(PARDEE, J., (orally.) Conceding for this case all thernaster has repar-ted, and all that counsel for intervenors claims as to the responsibility o£:the receivers in regard to a safe andwell-lighfed platform forilie egress and ingress of passengers to and from the railroad trains, :there still remains the question whether the intervenors did not contribute through their own negligence to the injuries they received. The evidence shows that they safely alighted on the platform amidst an unusually large cr0wd, at night, and thereupon commenced searching through the crowd for the friend with whom they intended to visit. In so seaJ;ching, they advanced towards the edge of the platform, when they were warned by an official of the railway as to their danger. At the moment they heeded the warning and turned back, but immediately returned to the same place,arid walked directly off the platform. The evidence of the ofijcial who gave the warning is corroborated by another witness, and is not specifically denied by intervenors. On this, point the master does llOtspecifically rule, and only refers to the warning as being insufficient to relieve the defendants, to-wit, "that even an admonition, in the confusion incident to as dark a situation, to a surging crowd, by one who, like the premises, was unknown to complainants, did not suffice the defendants' obligation of reasonable care in respect of safe conditions." :The confusion,and surging crowd, and dark situation, instead of depreciating the value of the warning, should have enhanced it to the Put upon their guard as they were, the. question naturally arises as to whether then, if not before, they were not obligated to use some prudence and caution in taking care of themselves, and if they neglected the caution, and heedlessly walked in the dangerous way, and were injured, can it he said tb,at did not, by their own negligence, to the injury? . . ,.... . , .' .. As this did,not apparently receive the attention by the counsel for the parties appearing before the master which its importance warrants, and aathe evidence can. evidently be made more explicit, the case should be recommitted. An order will therefore be. entered recOIumittlng report f9r further evidence, if desired by party lUld for report.
R. CO. "'.
& P. Ry. Co., (TANDY, Intervenor.)]
(Girouu Gourt, E. D. Louisiana. January 2, 1888.)
, , In an ac;tion against a raiiroad company for damages by fire from its locomotives,..tbe only evidence offered by the company was the affidavits of their master mechanic as to the condition of certain locomotives at the time. as to stack-nets, ash-pans, etc. The evidence did not 'disclose whether these were the engines by which the fire was caused. Held, that a finding by the master of damages for claimant was proper. ' ,
Reported by Charles B, Stafford, Esq., of t'\J,e New Orleans bar.
In Equity. On exceptions to master's report. G. E. Tandy filed a claim ill intervention against the receivers of the Texas & Pacific Railway Company for damage by ,fire ignited by one of the locomotives of the company to some mixed sedge and mesquite grass on his land, at the rate of $1.25 per acre. The master allowed the claimant one dollar per acre. The receivers excepted to the master's repOl.'t, on the gtounds that they were not liable for damages, and that the amount allowed was excessive. W. W.1Iowe, for receivers. PARDEE, J., (orally.) The only evidence offered by the receivers t() , rebut pre8umption of negligence in causing the fire complainedftf by intervenor consists of the ,affidavits of their master mechanic at Loqgview J l1J:lction, a place 200 miles qistant from the fire, that on ,days from August 6th to Augnst 11th, inclusive, engines 653, 662, and 663 were inspected at Longyiew, and stack-nets, ash-pttns, and dampers were in good condition. The evidence does not disclose whether the fire .()f Augpst 8th complained of was caused by fire from either or all of said ,num engines. The master's finding as to amount ofdamage is less than that fixed by the evidence. However, only the intervenor testified as to ,such ,amount, and the master seems to have discounted his evidence ,',', 20 per..cent. Let be overruled, and the report be 'confirmed. " :'
MISSOURI PAC. Ry. Co· .". TEXAS & P. Ry. Co., (SCHMIDT, Intervenor.y
(Oi'l'ouitOourt. E. D. Loui8iana. JanuarY 2. 1888.)
, Where a claim is filed against defendant railroa4 company for dllmageab.,fire originating from their locomotives, and the evidence proved the cause'of the fire as alleged, and the damages as allowed by the master,and there was no evidence in the record to rebut the presumption of n'egligence, the finding afthe master should be confirmed.' .
In Equity. On exceptions to master's report. Joseph Schmidt filed a claim against the receivers of the Texas & Pacific Railway Company for damages caused by the destruction of millet by fire caught from a locomotive operated 'on the railway. The master's final report was: "That on tbefifteenth day ofDecember, 1886, and at Paris, Tex., 'be totik testimony, and on the twentieth of said month reported thereon, in the ter of Joseph Schmidt, claimant., for a quantity of millet destroyedby;fil'e; that in the taking, on the twenty-second of September, 1887, of the evidence, digested in the Latimer Report (No. 238) next prectlding this, it appeared 'that
or'the New Orleans bar;
the same fire visited the premises, bothof said Joseph Schmidt and D. F. Latimer, against the former of whom a disallowance was, and. to the lattl'r of whom an allowance is, recommended; that this variance is due to evidence submitted in the more recent hearing, warranting a concliIsion against said receivers, an.d identifying the fire in both cases as one incident. Wherefore, nlJ action having been taken upon said report No. 108, the master reconsiders it, in view of the said later evidence, an,d'recommends an allowance in compensationfor thA loss of Said Jose'ph Schmidt, while absent from thl! scene, in the measure of 20 tons Of millet, at $12 per ton, or $240, to be paid when he shall have executed a receipt to the receivers in full of all damages sustained."
The receivers excepted to the findings of the report, on the grounds that the facts did not establish a presumption of negligence against them; that the eIhimant was not entitled to recover the amount allowed him, the evidence not showing tha.t the alleged injuries were a legal basis for any recovery'by him; and that the evidence and reports, in the matter of the claim, show that the neglect of the claimant contributed to the allegedinjury. .:. . . W. W. H&we, for. receivers.
PARDJtEnT. The intervention is a claim for damages caused by a fire originating'from the railway locomotives operated bythe receivers. The evidence proves the of the fire as alleged by'the intervenor, and the damages8S allowed by the master, and there is no evidence in the record to rebut the presumption of negligence. If this .class of fire eIaims are to be resisted by. the receivers,their attention'iscalled to the case of Railroad 00. v. Benson, 5 S. W. Rep. 822. Let the exceptions be overruled, and the report be confirmed.
I '.·· · ,
(Oz"rcuit Oourt,S D. Georgia,
<" .· . " · ..
Tum. A on the, :blank on which messages are sent, had a provision that it would not be liable tor damages for errors or delays, unless the claim for the same was presented within 80 days after the message was sent. Held. that the provision was unreasonable and void,1 '" ,
Oll'-:-PREsENTATION OFOUI)( WITHIN LI)(-
At Law. Acti0nonthe' case. Motion to direct :the jury to return iVoerdict for defendaht.. John T. JohJ¥lton,plaintiff, sued the Westam'Union' Telegrapb Company, for damages for failure to deliver a message, in city court, Macon, Georgia; clQfendantremoved theisuit to the circuitco1ll't of the United States. 8teed;Jc and Shotrecker; forplaintift. Qigby &: DotlJiv, foridefendant:' ..
See Stiles v. Telegraph Co., (Ariz.) 15 Pac. Rep. 712,