BUSTER 11. lIUMPHREYS.
N. H.& H. R.
(Circuit Oourt, 8. D. Net/} York.' March 27,1888.)
JUDGMlIlNT--RENlHTION AND ENTIty-POWER Oll' CLERK.
The clerk of a United States circuit court has no authority to enter ment for any other sum than the verdict and statute call for.
At Law. On motion to set aside judgment. The action was for damages for personal injuries causing death of intestate. The state statute provides that in entering judgment upon verdict in such caUses the clerk shall add to the amount of the verdict interest, from the date of the death. Plaintiff having filed a wah-er with the clerk, that officer entered judgment for the amount of verdict without interest. . Ohaa. H. Noxoo, for complainant. Wm. E. Barnett, for defendant.
LACOMBE, J. The clerk should not have entered judgment for any !:lum o.ther than what the verdict and !Stll-tute called for, and his action in that respectniust be setaside. The court undoubtedly possesses the power to regulate the amount of its own judgments, even though by so doing the recovery is reduced below the amount to which appellate jurisdiction attaches, (Bank v. Redick, 110 U. S. 224,3 Sup. Ct. Rep. 640, and cases cited;) but that function is to be exercised by the court, not by the clerk. The judgment entered upon the verdict is set aside, with leave to plaintiff to move before the judge who tried the case tor permission to enter judgment without interest or costs.
BUSTER 11. HUMPHREYS d
w: D. Missouri, w: D.
RAILROAD COMPANIES-ACCIDENTS AT CROSSINGS-UNAVOIDABLE ACCIDENT.
Where a freight train breaks in two, and the engineer's signal of "down breaks" frightens plaintiff's team, which runs between the two sections, and is killed. but there is no evidence that the train broke by fault of defendant. or that the.re was negligence in discovering the break.· or stopping the rear section, there is negligence on neither side, and no recovery can be had.
At Law. Action by plaintiff, C. W. Buster, against defendants, Solon Humphreys and Thomas E. Tutt, receivers of the Wabash, St. Leuis & Pacific Railroad, to recover damages for stock killed. C.' W. Fteeman, for complainant. GetYrge S. Grover and John W. Henry, for defendants.
THAYER, J. Compensation is sought in this proceeding in the sum of 8570 for a two-horse tearo, a wagon, and set of double harness. which were run over by one of defendants' freight trains at a rililroad crossing from one-eighth to one-,fourth mile east of Arnold Station, in Clay county, Mo., under the following circulnstances, and on December' 4, 1886: Plaintiff's hired man was driving the teamand wagon in question eastwardly from said station along a country road, whicbruns parallel with and very near to defendants' railroad track, for a short distance east of the station, and then crosses the track at right angles. As he approached the crossing, a freight train also approached the crossing from the east. As passed the team, or shortly after, the engineer discovered, or was made aware that the train (consisting of 21 cars) had broken into two parts. The usual signal (three short sharp whistles, once re-, peated) was immediately given for" down brakes" on that portion of the train which had become detached from the engine. According to the driver's testimony the horses took fright at the unusual noise made by the engine, broke from his control, and attempted to cross the railroad track through the opening between the two sections of the train. They were caught, however, on the crossing by the rear section of the train, and killed.. My first impression, gathered from the oral testimony, was that neither party concerned in the accident was guilty of negligence. The further testimony which has been submitted in the shape of the depositions of the train-men has tended to confirm that impression. The signal given for" down brakes," at which the horses took fright, which was the immediate cause of, the disaster, appears to have been the usual signal which, under, the circumstances. it was the duty of the engineer to give to prevent a collision between the front and rear sections of the train. Plaintiff's counsel insists, however, (and in that view I concur,) that it is proper to go back a step in the line of causation and inquire-First, if the train broke without fault on the part of the defendants, their servants, or agents; and, second, if the train-men exercised ordinary diligence in discovering the break, and in arresting the motion of the rear section after the break was discovered.' As to the first question, there is little room for doubt. The train separated eight car-lengths back from the engine by the breaking of a coupling pin. The pin in question was made by a reputable manufacturer; it was of approved size and strength, and such as are ordinarily used on first-class roads, and when found after the accident showed no outward evidence of being defective. Furthermore, there iSinoevidence that on the occasion in questien it had been subjected to any unusual strain by the negligence of the engineer in handling the engine. It appears that the speed of the train was checked somewhat as it neared Arnold Station, and then accelerated when the station was found to be clear. Such action on the part (If the engineer, while it may have produced a13train: on the coupling pin, cannot be esteemed a negligent act, because it was necessary to check the motion vi the train as it approached the station, and because the evidence fails t() show that in this.instance he either arrested or increased the motion cf
BUSTER tI. ,HUMPHREYS.
the train suddenly, so as to impose an extraordinary strain on the couplings. The evidence, in my opinion, is also insufficient to prove that the train-men failed to exerciEle ordinary care in discovering the break, and in stopping the rear section of the train. From all the circumstances of the case, it is apparent that the break was discovered within a few moments 'after it occurred. As the track at the point where the break occurred was straight, a short time would necessarily elapse before it could be, observed by persons stationed at the front or rear end of the train. According to the testimony. the brakeman at the forward end of the train was at his post, and acted with ordinary The conductor and other brakemen appear to have been in the caboose. The conductor says that he was in the cupola of the caboose, and on watch, but could not see the break, and was not advised of it until he heard the signal for" down breaks," and that he and the rear brakeman immediately set the brakes when the signal was given, and stopped the rear section as soon as possible. No regulation was shown from which it would appear that it was either the conductor's duty, or that of the rear brakemen, to remain on the top of the cars at all times, or to be there when they passed the point where the accident occurred. Furthermore, there is no necessary conflict between the testimony of the conductor and the witness Cooper, who was the only witness for plaintiff who gave any testimony tending to show negligence. Cooper's testimony does not show that the conductor was not on watch in the cupola, and it not show that either he or the rear brakeman failed to set the brakes as soon as they heard the signal, or that they might have discovered the break earlier. It is ohvious, that from their position it was impossible to see the break until a considerable space intervened between the two sections of the train. There is no doubt in my mind that they acted with due diligence as soOn as they were advised that the train had parted. Selfpreseryationwouldnaturally induce such conduct, and the presumption is that they so acted. In the absence of any proof that the train-men were not at their several posts of duty when the break occurred, it appears to me that there is no fair pretense for 13aying the break ought to have been discovered earlier, and that the rear section should have been stopped before it reached the crossing. Upon the whole I conclude that the collision was wholly fortuitous. The loss which plaintiff sustained ,is attributable solely to accident, and there can be no recovery. The intervening petition is accordingly dismissed.
CITY OF TOPEKA:.'"
April 9, 1888.)
., TO MAmTAINAOTION-PERSONAL REP. .
DEATH Bl'WRONQFUL .. ".
, . C()mp. Laws Kan. 1879,' § 420, pr()vfdes tMt "hi· addition to the causes of . 8ctiolfwhillh s'urvive at common:law, causes of action * * for an injurv 'to the person .* * shall. also !lurvive;," and by ,section 422 it is enacted tbatthe personal one whose death has been caused by wrongful act'may mamtain an action therefor. the damages recovered therein to "inure to, the exclusive benefit· of the widow and children, if any. or next of kin." . Held, that the right of action in favor of, the personal representa· tives. under section 422, was exclu!live, and that such representatives bad no right of action under section 420 for injuries to the person where the inju> rieswere such as to CBuse death. . '
SAxE-CONFLICT OF L A W S . :
The r,ightof action for injuries resultinl/:. in death being vested under 1 Rev. .St. Mo. 1879. §§ 2121 and 96. solely In tbe surviving consort. children, etc., an adminlsttatorof that state bas' no standing in the .federal courts sitting in Kansas, under Compo Laws Kan. 1879, §422. vesting such rlgbt of action in the personal representative to recover damages f.or the death of bis intestate caused there by wrongful act·. 'Following LimekiUer v. Railroad Co·· 88 Kan. 88, 5 Pac. Rep. 401. 1 .' ' .
' . '" ....
4,petitiqn against a city in Kansas, to recover damages for personal inju. 'rles resulting to plaintiff's.intestate from defendant's failure to keep its . Itreets intepalr, set up tha[fact'oftbe injury: that said Intestate bad been leriously hlltt and put to c()nslderable expense for medical attendance, etc., that sbe remained disabled. and enfeebled up' to the tilDe C)f her death, and tbat ber death was tbe result of'tbe accident. The administrator was ap· , pointed in Missouri, and a deqlUrrer to tbe petition was sustained on the ground"among otbers, tbat, under the laws of tbat state, such an 'action could not be maintaiped by the personal repr.esentatives, but should be brougbt by . the distributees, as provided by 1 Rev. St. Mo. 1879. § 2121. Leave baving been given, an amended.petltion was tiled, but tbe only additional matter lIet oui wall that tbe deceased had left a husband and son, naming tbem, and that they were next of kin. Held, on demurrer, that the additional matter did not change the question, and that the petition should be dismissed.
At Law. On demurrer to complaint. _ This was an action by A. G. Hulbert, the Missouri administrator of one Frances G. Hulbert. to recover damages from the city of Topeka. on the ground that her death had been caused by the negligent mannerin which that city kept its steeets; The accident occurred in August, 1879, and Mrs. Hulbert died in St. Louis, Mo., in March, 1886. The laws of that state as to this class of actions are found in 1 Rev. St. Mo. 1879, and are as follows:
"Sec. 94. Executors and administrators shall collect all money and debts of every kind due to the deceased, and give receipts and discbarges therefor; and shall commence and prosecute all actions which may be maintained and lAlthough, at common law, actions ex deZicro for injury to the person abate upon the death of the person injuredl yet where the statute in the state in which the injury Is inflicted gives a right of actlOn to the personal representative in such case, that right may be enforced in another state having a similar statute, in a court having jurisdiction of the defendant. Burns V. Railroad Co., (Ind.) 15 N. E. Rep. 230. It must appear from the record that the right of action could be maintained by the plainti1r in the state where the injury occurred. Hamilton v. Railway co., (Kan.) 18 Pac. Rep. 57.