lots, fora verdict, and that of the foreman was relied upon to show that they did so. But Sir JAMES MANSFIELD, C. J., said that the judges, after consultation with other judges upon the subject, were all of .the opinion that the affidavit of a; juryman could Jiot be received. There is, therefore, no misconduct of the jury made apparent, and no evidence that ,what is called misconduct' ha.d any effect upon the verdict. The motion' for a new trial mUl?-t, uIlon these considerations, be overruled. Motion 'for new trial overruled; and judgment on the verdict ordered.
(Oif'cmit Oourt, 8. D. NeW YO'I'k. February 14, 1888.)
NEW TntA.L-GltouNDS 'gOB TIuAIt--"FAlLURB TO URGB DEPENSEON.
In an action. against a railrpadc,ompany for injurie!! sustained by a paAsenger on ,one. of its trains, occasioned 1>1 another car being kicJted against the one she had entered. the defendant claimed that plaintiff was improperly in 'the carbefol1e the .train and introduced considerable testimony as to. prohibitlons.public1y,giVep to on the platform at the time, against entering a car until ,Ul.'e train was made up. No exception was , taken. to any pal't of the charge. and no request made to charge that the plailltiff had thebur.den of affh:;n1atively P1'9ving that there were no p,ohibltions ,again$t the car, an9. tlj,atshe c0!lseqllently was,:rightfully therein. Held, that Iluch'(iuestion would not be consIdered on a motIOn for a new triaL
.At OU'motion for new trial. 'George W. Wickraham and S. ],fcM'l.Chael,·for plaintiff. Oonieli'UIIVan BanfJL'oord; for defendant.'
SHIPMAN, J. 'This is a motion'by the defendant for a new-trial of an at law for damages to the plaintiff through the negligence of the dflfendant, asa common carrier of passengers. A very' general statement of the 'plaintiff's case is that,on August 9, 1886, after her ticket been purchased for her passage from Cairo to Catskill Landing, and 'she had. taken her seat in a car of the defendant upon her journey, 'tb8pS-r in which' she was standing was, through the of the railroad company, violently hit or bumped by another car, which was then being coupled to her car; that she was thrown upon the floor by the foree of the collision, and suffered injuries which eventually proved to be severe and permanent. Cairo iS'the terminus of the Cairo branch of 'the defendant1s narrow-gauge railway. On the arrival of the afternooIl 'tiain it returnst9Catskill with its load of passengers about as soon as the return traiilcan be conveniently made up; and, inasmuch as the $tQtut.e of the state of New York requires that the 'baggage car should predede the' passenger cars, it is always necessary that the train should be rearranged. This is usually done;' and was done on the afternoon in question, in the following way: After the landing of the passengers by the up-train,ai1d the removal of the gang-planks, which: had been plated
ROO]! V. CATSKiLL MT. RY. CO·
.between the cars and the platform, the locomotive was disconnected, was turlled around upon a turn-table, was run the train, was backed up, 'and coupled to what had been the rear end of the train, which was then hauled down to a point below a switch, and, subsequently, was re-arranged in front of the stationplatform. On the day of the accident the up"train consisted ofa locomotive, baggage car, excursion car, and two "cushioned coaches." Without describing minutely the way in which the rearrangement was effected, one of the cushioned coaches was "kicked in" to the station,-that is, it was sent off alone, by a push from the locomotive, to the station,-the conductor being at the brake. 'The seoond coach remained in Cairo. The excursion car was next" kicked in "to the station, and-coupled to the first coach. The engine was then attached to the baggage car, and, backing down with it to the other ears, the train was completed. The plaintiff offered evidence, at the opening of her case, as follows: On the day in question, she, with her infirm father, mother, and husband went to the depot to take the return train. The· tickets were purchased. The up-train was late. Afterithad arrived, and the cushioned coach had returned to the platform, the waiting passengers were told ,bY some one or more, whom she did not know, and whether co-passengers or not it did not appear, to get on board; the car was parallel with the station platform, and apparently in the right place. A gang-plank extended from the car to the platform, across which she went and guided her father. After she was in the car, it was violently hit by the excursion cat,which was being "kicked in." She was thrown down by the force of the concussion,and was seriously injured. The defendant's theory of the case was that the injury happened at a time when the plaintiff was improperly in the car, and before the train was made up for the reception of passengers,and in violation of the reasonable directions and prohibitions of the company, which the plaintiff either knew or ought to have known, if she gave ordinary heed to the known circumstances of the case; and much testimony was introduced in regard to prohibitions, publicly given at the time, to the passengers upon the platform, against eoteringa car until the train was made up. The jury were instructed that if the defendant had improperly, and against the known and reasonable regulations of the defendant, taken her seat in the car, in violation of its reasonable and known directions, and before the train was in readiness for her reception, and while abundant opportunity existed for her safely entering the car after it was announced to be in readiness, her conduct was what is called contributory negligence; and, for an injury which happened in the manner claimed by the plaintiff, the defendant would not be liable as a common carrier. The jury having returned a verdict for the plaintiff, the defendant moved for a new trial upon two grounds: First, that, it being incumbent upon the plaintiff to prove, as a .part of ber case, that she was lawfully in a car of the defendant, the burden of proof was upon her continually to maintain this allegation against all attacks; and, aecond, that the weight of evidence upon the question in issue largely preponderated in favor of the defendant.
It is true that it devolved upon the plaintiff, under the allegations of her complaint, to prove that she was lawfully a passenger in the car of the defendant, and that it had entered, at the time of the injury, which was occasioned by its negligence, upon the duties of a common carrier; and it is also true that this burden of proof did not leave her. She made a completeprirna facie case, unless it can be successfully claimed that it is negligence per se to enter a detached car in the apparently proper position, and in apparently prepared readiness, with gang-planks, except that it was detached, at the time designated for the departure of the train, with the other passengers, and without known objection from the carrier. Such a claim cannot properly be made, for it is a fact, known to almost every traveler, that detached cars are often habitually placed, especially at intermediate stations, for the very purpose of receiving and accommodating passengers, and having the car in readiness to be attache<f'toa. train or locomotive which is soon expected to arrive. The defendant, not denying negligence if it was incumbent upon it to exercise extreme care, introduced another and distinct fact into the case, which was that the plaintiff took her seat in violation of the reasonable and known directions of the defendant,and thereafter the turning point in the case was whether there was a requirement that the passengers should remain upon the platform until the train was made up, and whether this requirement was O11,e of which the plaintiff knew, or ought to have known,.if she paid ordinary heed to the known circumstances of the case. The cause was tried by both parties, and by the court, upon the principle that when the defendant, instead of denying what is alleged against him, relies upon some new matter which, if true, answers,the plaintiff's case, he takes,_ also, the burden of sustaining the new matter, (1 Best, Ev. 497;}aild'itwas assumed that the ,defendant took the burdenof establishing this new fact, which, if it existed, convicted the plaintiff of contributory negligence. The defendant tried the castj upon the theory that theplaintifi"scontributorynegligence destroyed her right of recovery. The generailiiprinciple in regard to contributory negligence which was laid down was in accordance with Railroad Co. v· .Horst, 93 U. S. 291; l.Whart. Ev.. §,361. No exception was taken to any portion of the charge, or to the admission of testimony, and no request of the defendant called upon the court to charge that the plaintiff had the burden of affirmatively maintaining that there were no prohibitions against her entering the car, and that she consequently was rightfully therein. I do not, therefore, consider that the question which the defendant now makes is one which I am called UPOll to decide. Upon the remaining point, that the verdict was against the evidence in the case, I 'do not think that the defendant's point is so clearly established as to justify anew trial. The motion is denied.
UNITED STATll:8 11. FORD.
w: D. North Oarolina.
December Term, 1887.)
RESCUE-OF ·GOODS UNDER SEIZUFlI\-INDICTMENT.
On an indictment for attempt to rescue goods under seizure it appeared that defendant, on arriving at the place soon after the "meers had obtained possession, sprang from his wagon in a violehtmanner, and, with abusive from the adjoming house and shoot the offiterms, threatened to get his cers, whQ only prevented hIm from accomplishing his purpose with much difficulty, and after an obstinate resistance. Held, that if this c-'lnduct was the result of a SUdden impulse of passion, excited by a supposed injury inflicted by the officers upon defendant's mother, a cOItviction would not be warranted; but that although defendant afterwards stated that he acted un· der such impression, and helped the officers in placing the goods upon his that it might be used for bearing them away, the jury could wagon, consider his subseqqent attempt to prevent its removal by threats and violent conduct, as showing his original purpose, and a connection between all his transactions. A contradiction between the testimony given by a witness at the trial and that given before the commissioner upon a preliminary examinatioIJ, tends to lessen its credibility; but where the commissioner testitit>s that he did not give a complete report of the evidence, and the testlmoLY was not so full as at the trial, an omission from the examination of testimony at the trial may be attributed to the incompleteness of the report. The testimony of near relatives in behalf of a defendant charged with crime is to be weighed with great caution.
Indictment for an Attempt to Rescue Property under Seizure. H. Jone8, U. S. Atty., and G. F. Bason, Asst. U. S. Atty., for the United States. D. A. Covington and F. I. Osborne, for defendant.
DICK,J., (chp,rging jury.) I regret that you have been detained so late in theevElning after such faithful and patient services during the daYiPut the ca.se on trial is an important one to the government, to the commUnity, and to the defendant, and requires full investigation. No more time than was necessary has been occupied in the examination of the witnesses,.,and in the argument of counsel, .and I feel iOure that you will consider the testimony and the of the court, and then render an impartial verdict. It appears from the testimony of the deputy collectors Means and Vanderford that they went to the house of Mrs. Martha Ford for the purpose of making search for illicit spirits which, from reliable information, they believed were concealed on her premises. They had in their hands a search-warrant, duly issued. by a commissioner of the circuit court, authorizing and directing Deputy Collector Means to search the premises William for spirituous liquors on which the tax had not been paid. William Ford resided with his mother, Martha Ford, and had the possession and control of a small house on, the premises. There was a bar-room sign over the door, and the deputy collectors had seen William