prayer. In fine,wnen it is once shown, that the· plaintiff has no right to a decree for the specific performallceofthe 'alleged contract; it logically follows that he is not entitled to the relief sought by either the first or the second prayer of the bill. " Little need be said as respects the third prayer. There being no ground for granting to the plaintiff any reliefof a purely equitable nature, the court has no jurisdiction with ,referenee to a. mere question of damages. Root v. Railway 00.,105 U. 189. Under the proofs, however, Ido not see' that the defendant is answerable'in damages for the causes assignediil this prayer. Let decree be drawn dismissing the plaintiff's bill, with costs to the defendant,' payable out of the estate of the bankrupts.
POTTS 'V, 'CHICAGO CITY
((l1rc'Ilit Court,N. D. Illinoi8.
December' 20, 1887.)
COMMON CARRIERS-OF PASSENGERS-CABLE CARS-NEGLIGENCE-BURDO OF PROOF. '
Plaintiff was injured by II colli.dop with a horse and buggy while riding .in a cable car whose curtains were drawn to keep out'the ,rain. Held, that plaintiff must show, by a preponderance of evidence of credible testimony, some neglect of duty or want of care a'll the part of the employes, or some one of , the employes, of defendant, in charge of the train. 1
In an actiOJi a common carrier with negligence, it is not necessary that it should be of great it is enough if the accident was cansed solely by any neglige.nee o.n Its part. however sUltht, if, by the exercise of reasonable precaution, the injury would not have been sustained. " Although there are no contract relations between the driver of a grip car of a cable road and the person whols to be carried, yet it is reasonable that the law should demand of him a vigilance corresponding to the responsibility placed upon him." .
OF GRIP-MAN. ' .
.. BAME-PA8BENGERS-NEGLIGENOE-WJU,T CONSTITUTES.
The plaintiff, who was a pa.esenger on one of defendant's.cable trains. was . injured by being .struck by tbe, shaft of a wagon projected into the car. His view of the sides of the strllets. imd knowledge of what was going on, was prevented by the cu.rtains being down to keep out the rain. . Held. that the pulling down of the curtains on account of the rain was not negligence on the. part. of the conductor of the train, even though it prevented a view of the sides of the streets.
Plaintiff was a passenger in the middle car of one of defendant's' cable trains. After the grip car had passed. a horse pr9jected one of the shafts of a wagon int'o the car in which plaintiff sat. Held, that defendant's liability dellended upon whether"the actions of the horse before the' grip car passed him were such as should reasonably have excited apprehensions ofa collision in theJllind of the grip-mltn, .
In an action for dama!l"es for injuries caused by the negligen'ce of the 'servants of a common carrier, the jury'are limited to only Buch compensatory damages as the plaintiff is entit\ed to recover.
Bee, also, Hayman v. Railroad Co., (pa.) 11 AtL Rep: SUi.
POTTS 11. CHICAGO CITY RY. CO.
At Law.' : Action for perSonall injuries. Mr. hatham, for plaintiff. Mr; Hardy,- for defendant.
DYER, J.,,(Charging jury.), ,This is a suit brought ,by the plaintiff to recover damages on account <:if a personal injury sustained by him while riding as a passenger on orie of the cars of the defendant company, on the twenty-ninth day of July, 1885. There are some facts in the case which are undisputed. The train was coming north on State street, and consisted of the grip car, which was in advance, the State-street car attached to the .grip car, and the Archer-avenue car in the rear. The plaintiff took the State-street car at or near hi.'! residence, on State street; and the concurrent testimony of the witnesses is that he was seated in the last seat of that car, on the east side of the car, with one passenger between him and the end of the seat. Soon after he took passage on the car, the curtains of the car were drawn down and fastened, on account of the weather, and were in that situation when tbe accident occurred. A borse and wagon were standing in fronl of a store on the east side of State street, between Fourteentb and Fifteentb streets, as tbe cars approached, and, in some manner, tbe circumstances of wbich you are to consider, as the train passed, the borse came in contact witbtbe middle car inthe train, and one of tbe shafts of the wagon struck the plaintiff witb such violence as to cause tbe injury complained of. , The grourrdupon which a rMovery is sought by the plaintiff is negligence of the defendant company. Necessarily, to entitle tbe plaintiff to recover, he must show some neglect of duty on the part of the employes, or some One of the employes, of the defendant, in cbarge of the train. And when I say neglect of duty, I mean such negligence, or want of care, as would make the defendant liable to the plaintiff, within tbe rule on the subject, which I shall presently state to you. There is noquesnon of contributory negligence on the part of the plaintiff. Having taken passage ontbe train, and paid his fare, he had a lawful right to be where he was in the car; and as the curtains were down, preventing him from having a view of the east side of the street, there was nothing done by him contributing to the accident, and nothing he could do so far ashe had knowledge of wbat was transpiring, and so far as is shown in the circumstances of the affair, to avoid the accident. He was therefore free from fault. It was the duty of the conductor of the train to protect the passengers in the car from the storm which was prevailing at the time, by making use of the curtains of the car, as such protection. If necessity existed, on account of the rain, to drop the curtains, then the act of putting them down so that passengers should not be exposed to the storm was entirely proper, and, under such circumstances, negligence would not be imputable to the defendant on account of that act, even though it prevented the passengers from having a view of the sides of the streets. I have said that proof of negligence is essential to a recovery by tbe plAintiff. It has ,been claimed by his counsel that proof of the accident
and resulting injury is alone sufficient. to raise a presumption of negligence, or to make what is called a prima .facie case, and that then the burden of proof shifts, casting upon the defendant the duty of showing that it was not guilty of negligence. For reasons which were stated when the point arose, I do not think that rule applicable to such a case as this. The burden of proof to,show negligence is upon the plaintiff. It devolves upon him to satisfy you by the fair weight of the evidence that the injury to the. plaintiff was caused by the negligence of those in charge of the train, or some one of the employes controlling its movements. This must be made to appear by a preponderance of credible testimony, to justify a verdict requiring the defendant to pay damages. Liability by no means arises in all cases from the mere happening of an accident. Accidents occur, and are sometimes unavoidable, even though a party has fulfilled his Whole duty in the circumstances in which he is placed. It is only when the accident and the resulting injury are traceable to the omission of some legal duty-to some want of that care which the law says the party is bound to exercise-that he can be justly called upon to make compensation for the injury done. For the protection of the passengers on its cars, the defendant is required to use all the means reasonably,in its power to prevent accidents. This was the duty it owed to the plaintiff. In undertaking to carry the plaintiff, the defendant assumed the duty to carry him safely, So far as the highest vigilance would enable it * * * to do so. Although there are no contract relations between the driver of one of these grip cars and the person who is tobe carried, yet, when the driver is placed in this position of responsibility, and the persons of others are intrusted to his prudence, his skill,and his fidelity, so that his negligence may iuflict serious injury, it is reasonable that the law should make. it tbe right of every person thus situated todeiIland from him a. vigilance corresponding to the responsibility. It is not necessary, in order·.to.charge a common carrier of persons,as this defendant is, with liability, that it be guilty of great negligence; it is enough if the accident was caused solely by any negligence on its part, however slight, if, by the exercise of the strictest care or precaution reasonably within its power, the injury would not have been sustained. And when I say clliused solely by negligence of the carrier, I mean a case in which, if there had been no negligence of the carrier, there would have been no injury. From what has been said you will, of course, readily infer and understand, that the defendant is not liable for injuries happeningfrQm sheer accident, misadventure, or misfortune, if there be no negligence or fault, or where no want of caution or foresight would prevent the injury.. Now, gentlemen, these are the principles of law to apply to the facts of the case. And what are the claims of the parties upon the facts? I d<> not propose to enter into a discussion of the testimony, but simply to call your attention to the issue upon .this question of alleged negligence. The plaintiff contends that the movements of the horse, and the situation of the wagon, were such, as the train of cars approached, as should have caused a prudent person occupying the station of driver of the
CHICAGO CITY RY. CO.
train, and bound to exercise a high degree of vigilance and care, to apprehend danger threatening the safety of passengers, and that, therefore, he should have stopped the train, or arrested its speed, in time to have avoided such danger. On the contrary, the defendant insists that the circumstances and situation were not such as reasonably to awaken any such apprehension, or such as called for the exercise of any greater care than was exercised on the occasion in question. This being the issue, you see that it is of vital consequence to ascertain with as much certainty as possible just what the situation was, as it was presented to the view of the driver of the approaching train. Was there or Was there not such a state of circumstances, such danger of collision, if the train proceeded on its way, as fairly and reasonably required the driver of the grip car, in the exercise of due care, to stop the train? That is the vital question,aIid in deciding it, as you may readily perceive, it is important to ascertain where the horse was, with reference to the sidewalk and the railroad track, as the train approached. What were his movements, and what evidence was there that he was or was not under control, or that he could or could not be controlled? Was he making any such violent movements, or exhibiting any such restiveness, as should reasonably have excited in the mind of the driver of the train an apprehension of a collision, or as required him, in the exercise of proper vigilance and care, to stop the train? Certainly, if it be true, as is claimed by the defendant; that there were no movements of the horse indicating any danger oI.collision until after the grip car had passed him, and he then suddenly, from fright or other cause, sprang forward, and caused the shafts of the wagon to project into the car, thus precipitating a collision, and consequent injury, which could not reasonably have been anticipated, the defendant should not be held liable. It is matter of common knowledge that, on the thoroughfares of a great city like,this, of necessity, in the transaction of business, horses and wagons are driven and stand in great numbers along the streets. It is, of course, the duty of the defendant to so manage and control its trains, as not, by negligence, to bring about collision with vehicles occupying the places which they are expected to occupy in the streets. This is the legalrequitemerit, and the safety of person's and property necessitates its careful observance. At the same time, care should be taken that pecuniary liability is not imposed where it is shown that, without fault of the car-driver, some sudden and unlooked-for circumstance precipitates a collision between one of these vehicles and a moving train. Now, in the light of the suggestions which the court has given, look closely into the facts and circumstances which attended this occurrence. Scan and sift the testimony of the witnesses, and determine whether the injury was caused by any fault of the driver of the train in question. Some of the witnesses disagree in their statements of the occurrence. YouwiH endeavor to reconcile their testimony, as far as possible, and, wherein they differ so radically that this is impossible, determine which of them, from opportUliities for observation, and in their respective places of obare most likely to have correctly observed and sta,ted the circum-
. stances Qfthe .accident.' If you find that the defendant .isMt chargeable with negligence, that will be the end of the case. But if you find otherwise, then there willrefllilin the question of damages. And if you come to consider this quest.on,: you must remember that you can give .only sUC;Jh:dllmages as will fairly and reasonably compensate the plaintiff for the injury sustained. You are limited to what are known as compensatory damages, if you find the plaintiff entitled to recover. You have no right to go beyond that. You have no right to give damages by way of punishment. In fixing the compensation to be allowed the plaintiff, you should take into consideration the character and extent of the injury inflicted upon him, the pain and Buffering undergone by him in consequence of the injury, actual loss of time, expense incurred for medicines and medical attendance, and also any permanent injury sustllined by him, if you believe from the evidence that he has Buffered permanent injury, including permanent loss, if any is proved, arising from any disability resulting to the plaintiff from the injury, which rende1'& him. less capable of attending to his business than he would have . been.if the injury had not been received. Now,gentlemen,you will take this case, and deal with itimpartially, and with strict regard to the rights of the parties. Deal with it precisely as -if it were a controversy betweenn'lan and man. Naturally,our sympathies are always awakened in behalf of those who have suffered misfortune or injurYi but the duty ,of the court and. of the jury is, in every case that comes before them, so far as lies in their power, to administer the law with reference solely to the strict legal rights of the parties.
BOARD OF COUNTY COM'RS OF CHAFFEE Co.
(Oircuit Court, .D. Oolorado. January 12,1888.)
COUlfrIES-'-!BSUANCE OF BONDS-VALIDITY-RECITALS.
to fund 'their debts, which show full compliance with the act, but not the
The recitals in a bond, issued under Acts Colo. 1881, authorizing counties
amount of the issue, will estop the county from alleging, against a bonajid' holdez, that the bond was issued in violation of thl' constitutionallimitatiolL
AtLaw. On motion for Teller &: Oralwod, for plaintiff. G. K. I!arten8tein, for defendant.
on the pleadings.
BREWER, J. Andrew PMter against the County of Chaffee is a suit on county bonds. in which the defense presented is that the bonds were isin exchange for warrants void because issued in the first instance in violation of the constitutional limitation as to county indebtedness. In the course of the argument which was had, the decision of preme court of Colorado; in Board County G'om'r8 v. People, 14 Pac. Rep.