HOLLAND V. BROWN.
CoWAN 'V. UNION PAC.
(Oircuit Oourt, D. Colorado. May 12, 1888)
MASTER AND SERVANT-NEGLIGENCE OF MASTER-FAILURE TO FENCE RAILROAD
Neither common nor statute law in Colorado require that a railroad com· pany shall fence its track to prevent cattle from straying upon it. Hence. 'the company is not liable for the death of one of its engineers caused by a collision with cattle on the track.
At Law. Action for damages. On demurrer to complaint. Browne &; Putnam, for plaintiff. Teller &; Orahood, for defendant.
BREWER, J. In Cowan I,1gainst the Union Pacific Railway Company is a demurrer to the complaint. The cause of action is, briefly, that the plaintiff's intestate was an engineer on the defendant's road, and while running a train, stray cattle jumped on the track, whereby the engine was thrown therefrom and he killed. Neither common nor statute law in Colorado requires that a railroad company fence its track to prevent cattle straying upon it, and where there is no obligation there is no liability. CouDsel for plaintiff, in his brief, admits there is no authority sustaining this complaint, but insists that somebody must blaze the way, and we ought to. It is sufficient reply to that that it is the duty of .the law-making legislature-to blaze the way. The duty of the court is simply to walk super antiquas vias. Many a case I decide one way when I should decide differently if I had authority to make as well as construe the law. In the absence of any legislative .action establishing a new rule, the only true way and rule for the court is to say ita· lex scripta est. The demurrer to the complaint will be sUstained. This is one of those cases whose pleading, I think; in the nature of things, cannot be changed so as to make a cause of action.
(District Oourt, D. OregOfl,. May 22, 1888.)
1. DEATH BY WBONGFUL ACT-ACTION BY ADMINISTRATOR-DAMAGES.
The damages given to an administrator for the death of his intestate by the statute of Qregon,(COm p.1887,.. 8.,71) are. when recovered. assets of ,the estate. They do not includ.e anything but what is consequent on the death, and therefore DO allo"wance can be made for the expenses of the illness. attendant 011 the injury which caused the death, or of the burial of the deceased.
'·These damages are in the nature of a compensation paid by the wrong-doer ,:, to creditors and next of kin of the deceased for the loss of life in which they have a pecuniary interest. and incidentally the liability to pay them is calculated to secure from carriers and corMratioDs more consideration for·thelive. of passengers aJ;ld employes committed to their care. . , .' .
SAME-LIABILITY OF VESSELS IN FAULT.
Ferry-boat No.2 and the steam-launch Mikado coHided in t.he Willamette . river, in front of the Portland slip of the former. and thereby caused the death · of a passenger on the latter, when such collision might have been avoided and the death prevented by the proper handhng of eIther boat. Held, the owners of both boats are liable to the administrator of the deceased. under the statuttl of Oregon, in 8olido, for the damages resulting from such death. In Admiralty. William H. Effinger, for libelant. Rufus Mallory, for Brown & McCabe. John W. WhaUey, for receiver, Koehler.
(ByUabu8 by the Oourt.)
DEADY, J. This suit is brought by the libelant as the administrator of the estate of Philip J. Holland, 8eceased. against the defendants J. A. Brown and William L. McCabe, as owners of the steam-launch Mikado, and Richard Koehler, as the receiver of the United States circuit court of this district, of the property of the Oregon & California Railway Company, the owner of the steam ferry-boat No.2, to recover damages for the death of said Philip, alleged to have been caused by the concurring negligence and misconduct of the persons in charge of said boats, respectively, on October 26, 1886. The owners of the Mikado and the receiver answer separately, and the controversy has assumed a three-sided form; each defendant practically admitting that the deceased came to his death by the fault of the person in.charge of 'the other's boat. Brown and McCabe also allege that the negligence of the deceased contributed to his death; and both defendants allege that his death was no loss to his estate. The character in which the libelant sues is admitted. From the pleadings and in the case, and a view of the vicini4' where the injury occurred, I find the following facts: On and before October 26, 1886, the Oregon & California Railway Company was the owner of the steam ferry-boat No.2, then running under the direction of the defendant Koehler, receiver as aforesaid, as a ferry-boat on the Willamette river, between her slip at the foot of F street in Portland, and her landing on the east side of the river, a distance of about 1.000 feet across the stream and 800 feet down the same from said slip. 'rhe ferry-boat is a double ended, heavy, side-wheel, iron boat of great power. about 130 feet long and 54 feet wide over aU,-her guards projecting beyond her hull some 10 to 12 feet, and about 8 feet above her water-line, and is capable of making 12 miles an hour, and of stopping when under way, at full speed, in about 70 feet. . At the same time the defendants Brown & McCabe were the owners ,of the steam-launch Mikado, then lmgaged in carrying passengers between Portland and Albina,-a distance of about a mHe.-starting from her dock in Portland, between D and E streets, and about 360 feet above the ferry slip. The Mikado iaa propeller about 45 feet long and 12.feet beam, and can make 10 to 12 miles an hour. She has a pilot-house a few feet aft of her stern, back of which Is a cabin on deck and an open space at the stern, for the accommodation of passengers, of which she can carry 60. Brown & McCabe are stevedores, and the Mikado was being used by them
to carry their workmen down the river. to assist in loading and unloading- vessels. Brown usually acted as pilot. for which he had a license from the United States inspectors. At this time the owners of the Mikado were under contract with Robert MacIntosh, a ship carpenter of POl·t1and, to carry his workmen to and from their employment between the termini of her route. at so much a month. On the morning of October 26. 1886. the Mikado was at her dock with 35 or 40 passengers on board; mostly workmen going to their day's labor. including the deceased, who was then in the employ of MacIntosh as a "liner" of ships and "handy man." Brown, the pilot, was not on hand. Arthur Jones. a youth between 17 and 18 years of age. who is now engaged as fireman OD the Northern Pacific Railway. and was then employed on the boat in some sqbordinate capacity. often took the wheel under Brown's direction. The time having arrived for the passengers to go to their work, Jones undertook to make the trip as pilot. Accordingly the Mikado was started out, head up stream. and swung around till her bow pointed down stream. at about 250 feet from the west shore and her dock, when Jones observed the ferry- boat coming,out of her slip on the way across and down the river to her east shore landing. He immediately gave one blast of his whistle. to signify that he intended to pass to the right. The pilot of the ferry-boat immediately responded with one whistle, and, instead of porting his helm and passing to the right. up stream, stopped his engines. At the time these signals were given, the ferry-boat had moved out from her slip about 20 feet, and the Mikado was about 300 feet above the point where the courses of the two boats, if continued. would cross eachother at right angles. The ferry-boat had not yet gotten steerage-way, and was moving directly across the river at about three miles an hour. while the Mikado was moving down stream at about five miles an hour, with her helm slightly to port. The ferry-boat, by force of the impetus already obtained, continued to move forward through the water after her engines were stopped, and the Mikado did not change course or slacken her speed until the collision was imminent or unavoidable, when she ported her helm and stopped her engine. About the same time the ferry boat reversed her engines. The port side of the bow of the Mikado came in contact with the starboard side of the ferry-boat, about 20 feet aft, at an angle of about 45 deg., and ran under the latter. which pushed the pilot-house of the Mikado, with Jones in it, off into the river on the starboard side. At and just before the collision took place the deceased, with two other passengers, was standing on the deck of the Mikado in front of the pilot-house. One of them saved himself by jumping overboard and the other by springing up onto the guard of the feny-boat. But the deceased was caught about the head, between the guard and pilot-house, and badly hurt, from the effects of which he subsequently died. Among other injuries, his jaw was broken and his skull fractured at the basfl, which resulted in an abscess on the brain, that was the immediate cause of his death. There was neither wind nor current to interfere with the action or management of the boats, and either could have been stopped, backed, or turned aside without difficulty In time to avoid the colIisic,n. From these facts, but one conclusion can be drawn. The management of both boats was in fault. The first duty of a person in charge of a vessel, partic1.llarly where the lives of passengers are at risk, is to avoid a collision by all· means. The Mikado was moving at the rate of 5 miles an hour, and the ferryhl)st at the rate of 3, when the whistles were blown. The former would
cross the course of the latter in a of 300 feet. The ferry-boat was then 20 feet from shore, and her length was 130m()re, which made her bow 150 feet out in the stream. 'Fhe was making 4i feet a second, and the Mikado feet in the same time. At this rate the Mikado would pass over the 300 feet in a little less than 41 seconds, while the ferry-boat would move forward 150 feet in a little more than 36 seconds, and thus bring them both, to the point of intersection within less than 5 seconds of each other. From this it is evident that it ought not to have escaped the attention of a competent and attentive pilot that if the two boats continued to move as they did at and after the whistles were blown, the Mikado would most likely collide with the ferry-boat at some point along her length of 130 feet. The engineer of the ferry-boat testified that he got the bell to reverse the engines in about a half minute after they were stopped. In that time the ferry-boat would move over about 140- feet, which would put her bow 290 feet from the shore, and at right angles with the course of the Mikado, when her engines were reversed. It is therefore quite evident, notwithstanding the testimony to the contrary, that the engines of the ferry-boat were not reversed until or just before the moment of collision. These conclusions as to distances, times, and rates of speed are, of course, only approximately true. They are drawn from widely discrepant and contradictory statements of witnesses, most of which are at best but indefinite impressions and off-hand guesses. But of this fact there is no doubt: These two boats came into collision under circumstances from which it plainly appears that either of tllem hlight easily have kept out of the other's way, and that the death of Philip J. Holland was caused thereby. The. pilot of the ferry-boat, IlJte:r. to the signal of the Mikado, and seeing that she W/1.S about to pass qirectly in front of him, _ ought to have reversed his engines at once, and, thus have avoided the collision. Instead of this he allowed his boat to keep moving forward towards the point of collision, apparently relying on the fact that there was plenty of room for the Mikado to pass to the starboard of him, and if she did not keep out of theway, and a collision occurred, she would certainly get the worst of it,and .be more careful in the future. 00 the other hand, when Jones saw that the ferry-boat was moving tbroughthe water at right anglEiS with course, and her forward end within l,essthan 200 feet of it, he ought to have ported ,his helm, and passed atleastlOO feet in front' Of her, or reversed his engines and waited for her to go by. Instead of this, he willfully held on his way, acting. apparently on the idea that as he had what, by virtue of the signals, he calltld"the dght of way, II he was justified in passing so far to the left as to not only to stop her engines, but to reverse them, tobackoqt of his way; and this, notwithstapding there was a breadth of not less than 700 feet of good water on his right, the very side of the river to whiehhe wa,sbound, obligl;\tion .he was under, to carry the deceased and his safely,.so far as p!,actic!l.ble, "by
HOLT.A:'\D V. BROW!\".
the exercise of human care and foresight." Shoflmaket, v. Kingsbury, 12 Wall. 376. , Indeed, I think the Mikado was primarily in fault, in undertaking to croSs the bow of the ferry-boat in such proximity to it, while it was moving forward, especially while there was so much open water and free way on her starboard. The signal made by the Mikado did not give her the absolute "right of way" over any particular part of the river. It only signified tbat the Mikado would pass to the starboard of the ferryboat, and therefore the latter must pass to her starboard or slow up or stop until she got by. It would have been very inconvenient for the ,ferry-boat to have kept under way and ported her' helm, as that would have taken her up stream, while her course was diagonally down stream. , Therefore, she might properly slow up or stop until the Mikado passed. . ' But the ferry-boat is a large machine,-a floating bridge,-an established and licensed method of transit, moving to and fro at regular and short intervals on the line of a great interstate thoroughfare; and, in my judg'ment, it is an abuse of the sailing rules prescribed by section 4233 of the,Revised Statutes-particularly in and about the wharves and harbor of this city-for every little cockle-shell of a craft that catches the ferryboat'coming out of her slip to whistle for the'so-cal1ed "right of way," 'arid thus compel het not only to stop her engines but reverse them, so can pass immediately in front of the great boat wIth impunity, instead of waiting a: ;few seconds until she has passed on. , But in this proceeding the misconduct of the one party does notex, CUse other. The pilot of each boat was bound, irrespeJtive of the "propnetyof the conduct of'the other, to do what he could'to avoid a . collision on account of the danger to human' life. In the consideration of this question no specific effect to the fact that the Mikado did not have. a licensed' pilot at' 'the wheel. For thus acting 'without license Jones may be proceeded agaInst under the law personally, and Brown ,has already paid a fine. But in this suit the only inquiry, so far as the Mikado is concerned, is, was 'she in fault, whether managed by a licensed or unlicensed pilot? But, in'considering the propriety of Jones' conduct on the occfJsion, it is impossible to altogether overlook the fact that he was an iaexperien(-ed and determined youth, who probably was morel:loncernerl to assert what he ca11edhis '''right of way" against the 'mig boat" than to avoid a collision: . Although this suit was brought on the theory that this court might havejurisdictioh of thewr6ng complained of, without the aid ()f any 'statute of congress or the state, and therefore the damages were only lim, ited by the jUdgment oithe court, yet on the hearing it was admitted, on the authority of the case of The Harrisburg, 119 U. S. 199,7 Sup. Ct. Rep; 140, that the right to damages at all was derived from the statute -()fthe state, which limits the amount to $5,000, and thereforethtl claim in the libel for $10,000 damages was abandoned. In addition to the "claim for general.<Jaroages the libel containll80 claim f01" arising froni: the expenses of the last sicknesS' and burial of the deceased, , amounting to 81 ;415.
A statute of Oregon (Comp. 1887, § 371) gives the administration of
a person whose death "is caused by the wrongful act or omission of ana right to recover damages therefore, not exoeeding $5,000. The
damages, when recovered, are assets of the estate, and must be disposed of accGrdingly. They are assessed for the pecuniary injury to the dePerson's estate caused by his death. Nothing is therefore allowed for the sufferings of the deceased, nor as a solace to the survivors. TherighHo these damages may be enforced in the admiralty, whenever the wrong which caused the death occurred. as in this case, on a naviga,ble water of the United States. See Holmes v. Ra,ilway Co., 6 Sawy. ,262, 5 Fed. Rep. 75, and cases there cited; also £add v. Foster, 31 Fed. Rep. 827. In estimating the damages resulting from the death' of the deceased to his estate, his age, health, habits, and disposition and capacity to labor and make and save money and t\cquire property mUbt be considered. < . Holmes v. Railway Co., 6 Sawy.262, 5 Fed. Rep. 75. The deceased was about 40 years of age, and in good bodily health . and strength. Be was not in the full sense of the term a skilled workman; but his brother, the libelant, is a master Ship-carpenter, and the deceased worked at and about this business, and was considered a willing, "handy man." His employer at the tiIrle of his death, a master ship-carpenter, with whom he was once a partner, gave him employment about halfthe time at five dollars a day. Another master workman said he paid for the same kind of work; four dollars a day. At the same time the evidence shows that he was what is call,ed a "good fellow," given more 9r less to drink and dissipation when not employed, and, although he had no one but himself to support, died ,worth nothing. ThE}re are some circumstances, however, which tend to show that a short time before his death he had gone to live with his brother, the libelant, and was intending and attempting a new and better Be does not appear to have been married, and his relatives, so far as the evidence discloses, are the libelant and a sister. , Be was capable of earning probably $4 a day for 300 days in the year, and, supposing he would lay up$4QO a year of this sum for 20 years, tlfe simple money value of his life might be worth the present sum of $5,000., But it is impossible to say whether he would have done so or not. It is possible that he might. but the probabilities are all against it. The case of Railroad Co. v. Barron, 5 Wall. 90, arose under an Illinois statute that contained a direction. which, though not expressed in the Oregon statute, is fairly implie\l in it. It reads: "The jury may give with refsuch damages as they shall deem a fair and just erence to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $5,000." Ip commenting on this statute the court, speaking by Mr. Justice NELSON, says: .. We do not think it necessary to prove actual pecuniary loss. It can rarely
be done. The attempt to do it would substitute the opinions of witnesses for the conclusions of the jury. The facts proved will enable the jury to decide
on the proper measure of responsibility. Some cases are harder than others, and the law intends the jury shall discriminate in different cases. There is no fixed measure of damages, and no artificial' rule by which the damages in a given case can be computed." In Railroad 00. v. McCloskey, 23 Pa. St. 526, a case arising under a somewhat similar,statute, it is said: "The principle which requires compensation for the death of a freeman is not at aU new in history. It was long an institution among our Anglo-Saxon ancestors; and perhaps it was never positively abolished, but rather died out under the influence of the Nonnan conquest and' the centraliziug power of the king's com;ts, which treated all such wrongs as wrongs done to the king, and hence as crirninal offenses. It deems to have heen an institution common to all Germanic llations, and perhaps to every people that. rose one degree above , the savage Jife, and were still striving to rise. With them it was intended as a compensation to surviving kindred, and as a means for preventing the (Jisorders that folloW in the train of private revenge." This the ancient Saxon weregild, or price of a homicide or, other crime, whereby a fixed pecuniary compensation was made to the nextof kinfor the death of a relative. Every man's life had its value, called a "were," and,in the time of King Athelstan the were of every order of persons in the state, from the king to the cheod, was fixed by law. Blount, Law Diet. "Weregild," 1 Reeve, Eng. Law, 15; 4 Bl. Comm.188, 1313. And the primary purpose of the modern statute, like that of the ancient custom, is to provide com pensation for the injury rather than to inflict punishment for the wrong, yet in estimatit;lg the damages for the fQrmer it may be to remember that the liability to pay them may have the effect to inculcate a wholesome regard for human life, and compel, ,carriers and corporations having the persons of passengers and employes in their care to afaithful discharge of their duty towards them. Giving due weight, then, so far as I can, to these facts, probabilities, and considerations, my judgment is that the damages for the death of the deceased ought not to exceed $2,500. The items of expense of the sickness and burial of the deceased, concerning which any proof was offered, are as follows: 56 days in St. Vincent's hospital, with day and night nurse, and shroud and liquor, $168; undertaker; $94.50; carriage hire, $23; ferriage, $15.30; grave, $15; priest and choir, $25; physician, $325. In all, $670. I danot think anything can be allowed in this suit for these expenses, -at least as such. True, they are the result of the wrongful conduct of the defendants which caused the death of the deceased. But the action given by the statute is for the death simply. This includes, of course, all such losses to his estate, or creditors and next of kin to whom it belongs, lJ,nd for whose benefit the action is allowed, as may be fairly implied from the cessation of his life. . The fact on which the damages are computed is death and its consequences, and not its antecedents or cause. And yet it is manifest that the estate of the deceased is injured or diminished by these expenses. The damages allowed in this case must first be applied by the administrator to the payment of what may be found jllstly due the creditors of v.35F.no.1-4
. FEDERAL REPORTER.
estate on this F.o,r this' reason be proper and convenient t9 have the amount of these expense$ considered in estimating the general damages. But as the statute, in my judgment, does not allthorize the recovery of )lamages on any such account, the claim must be rejected. ' ,' , The defense of contributory negligence remains to be considered. .T,be burden of proof in this behalf is on the defendant alleging the negligenCEl' The only particular in which it is claimed that the conduct of the deoeasedcontributed tp his death is that he ,occupied a place on the forward deck instead of the cabin or the after one. Ordinarily there was no unusual danger in being there. There was nothing to indicate that passengers were not allowed forward of the pilot-houge. Jones does not say that he gave the passengers any warning on thel?ubject on this occasion, though he thinks he dm &peak of it at some other time in the hearing of the deceased. If this was a dangerous position under ordinary , circumstances, it was the duty of the owners of the boat to provide some meahs of restraining or warning passengers from going there. The fact that on this occasion the deceased, and two others stood on this deckjust in front of the pilot-house, right ulidE1r the eye of the pilot,withouta wotdoI: suggestion from him to the contrary, proves that the position was notregardedby the Jatter as one ohny partict1lardanger. But ,it is said that he was negligent in remainihg there after thecolIision wasimminent. ,But that is notatall certain. ' He might havethought, as one of his companions did,that the safest course was to remain and take the of getting on the big boat at the point of collision before the little One was'run down. His companion, who jumped overboard, said he did so rather than undertake to.get back along the narrow space between the house and gunwale, because he thought the Mikado was going to be sunk. '·· , . " ' , The eviciEiriceis meager and' obscure 011 this point, it only appearing that ,ofthe three persons who stood on this deck one jumped overboard and another sprang upon the guard of the ferry-boat arid was saved, while ,the deceased', who, for aught that appears, was intending and trying to escapein the same way, was caught by the head betweenthe guard and pilot-house, as in the jaws of vice, and crushed so that he died; and, but for the fa?t that the pilot-house gave way and was pushed overboard, 'he probably would have heenkilled outright. However, the deceased having been placed .in this by the of the defendants, they jtre lIable for hiS even If ltappears that It was possible for him to have 'escaped unharmed. The law does not require skill, diligence; or good judgment from' a, person in such a situation or moment 'Of danger and excitement, but'regards him as one in extremis, whose conduct, though erroneous, unwise, it does not consider a fault. Ladd v. Foster,31 Fed. Rep. 831, and cases there cited. The defendants, having hy their concurrent 1'legligencecaused the death of the deceased,are lia,ble, in solido, for the damages. ' Id. 835, and cases there cited. , Thelibelarit is entitled to a dbcree against the defendams for the sum of $2;500, and costs and disburseinents of the suit.
CAMMEYER V. DURHAM HOUSE DRAINAGE CO.
CAMMEYER '11. DURHAM HOUSE DRAINAGE
Co. et al,
lOircuit (Jourt, N. D. lllinoil. May 16, 1888.)
REPLEVIN-JUDGMENT-AMENDMENT-RETURN OF PPOPERTY.
2 Starr &0. St. Ill. p. 2016, c. 119, § 22. provides that "if the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a non· .'suit or discontinuance, * * * judgment shall be given for the return of the property and damages for the use thereof from tl:ie time it was taken un· til a return thereof shall be made, unless the plaintiff shall in the mean time have become entitled to the possession of the property, wh.en judgment may be given against him for costs and damages, " etc.. Held where, upon the case being called for trial. plaintiff dismissed the suit. and the usual order was en· tered simply adjudging that the cause be dismissed, and that defendant reo cover his costs and have execution therefor, that the court had no power, after two statute terms had passed, to enter judgment for a return of the property ".
, At Law. On motion to amend judgment. J. E. Slecper., for the motion.
Mr. Defrees, ,contra.
BLODGETT, J. ,This of replevin commenced in this for· a quantity of iron pipe, etp. The plaintiffs gave the usual bond to the marshal, conditioned for the due prosecution of the suit and return be awarded; and the writ was duly exof the property, if return ecuted by taking the property from the possession of the defendant and delivering it to the plaintiff. On the 14th Jay of April, 1886, when the case was 0ll11ed for trial,the plaintiff's attorney dismissed the case, and the usual order was entered when a plaintiff dismisses his oWQcase, simply adjudging that the cause be dismissed, and that defendant recover his costs from the plaintiff, and that he have execution therefor. The illinois statute provides (chapter 119, § 22: 1) "If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or dis('ontinuance. or if the right of property is adjUdged against him, jUdgment shall be given for the return of the property. and damages for t.he use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the mean time have become entitled to the possession of the property, when jUdgment may be gIven against him for custs and damages. * * *" No judgment for a return of the property was rendered, and the defendant now comes and moves the court for such judgment, and a writ of retorno habendo, on notice duly served on the attorneys who brought the l;luit. The att(lrneys so served protest that they are no longer attorneys in the case, and submit that inasmuch as two full statute terms have passed since the judgment of dismissal was entered, the court has lost control of the record, and cannot now make any substantial change in it, or render for return of the property. The case seems to be fully covered by the case of Lill v. Stookey. 72
! . '
, 12 Starr &; O. st. 111 p. 2016. '.!