may contain. So that the character of the land, whether mineral or agricultural, is always, when contested, a matter of fact to be decided on evidence, rather than upon the classification in the land-office.. But it is not altogether a question of finding valuable ore or metal in the ground from which the timber is taken. Obviously the act of congress is not limited to land which is or may be actually occupied for mining purposes. After location made, the timber on a mining claim belongs to the claimant, and it cannot be supposed that congress intended to give it to another. Furthermore, the grant is of timber on lands subject to mineral entry, and not subject to entry as agricultural lands, which means such as may be taken for mining purposes, as distinguished from such as have been taken in that way. Without attempting to describe mineral lands in a way which may be sufficient for all cases arising under the act of 1878, it seems clear that the lands mentioned in the complaint and in the statement of facts are of thatoharacter. They are in a mountain region, in the vicinity of valuable mines, and have some indications of valuable metals in them. They are unfit for cultivation and for pasturage, and are not subject to entry under the pre-emption or other laws relating to agriculturallallds. It is conceded that the timber was taken and used for the purposes mentioned in the act, and the defendant is a citizen orthe state, and thus entitled to the benefit of its provisions. Judgment will beentered.for defendant.
«(JirlJult (Jourt, S. D. Mississippi, E. D.
RAILROAD COMPANIES-AcCIDENTS AT CROSSINGS.
It is the duty of a person approaching" railroad crossing to'stop and look in both directions for approaching trains. and also to listen for the same pur· pose, PMticularlywhen lje has reason to believe a.train is likelysoQn to pass, and if he fails to perform this duty, or sees the approaching train and doe!:! not wait for it to pass, he Rssumes the risk of accident and cannot recover, unless defendant's employes, seeing him on the track, neglected tOUS8 the means reasonably within their power to prevent the accident,
inflictinp; upon him. wounds and bruiseS from which he suffered great bodily pain tlntiltha 27th day of said month, when he died; his death being caused by said injuries. To recover damages for such injuries this suit is brought; To the charges so made the defendant has interposed two answers or pleas: First, he denies that the injuries complained of were caused by the negligence and carelessness of the employes operating said locomotive and train; and, secondly. that the accident was caused by the gross negligence and carelessness of said Hugh L. Dunning. These are the issues that you are to determine from the evidence and the instructions given you by the court. Section 1059 of the Code of 1880 provides that, in all actions against railroad companies for damages done to persons or property I "proof ofinjury inflicted by the running of the .locomotives or cars of such company shall be prirrv:tfacie evidence of the want of reasonable skill and care on the part of the servants of such company in reference thereto." The reason for throwing the burden of proof .to show that the iqjury was not the result of want of skill on the part of the employes' in rUlming the train is that such employes are usually able, bytheir testimOnY, to show how the injury occurred, when the party ,injured eannot. This rule must govern in this case; but, if the defendant has produced proof that the injuries were not caused by the negliand careless conduct of the employes then running the train, it will be a defense to this action, unless the plaintiff has overcome suoh proof by the evidence. The prima facie evidence exacted by the statute only continues until it is met and balanced by proof on the part of defendant. At that point the burden of proof is shifted to the plaintiff, who must, to entitle him to a verdict, reasonably satisfy you that his injuries were caused by the negligence and carelessness of the employes operating or running the locomotive and cars. This you will determine from all the evidence, after having duly considered and weighed the same. The burden of proof under the second plea is upon the defend.ant,and it is for hi IIl to show by the proof that the accident was caused 'by,'thecarelesl.'l and negligent conduct of Hugh L. bunning, thtl deceased. If this is shown to your reasonable satisfaction, it will make a complete .pefense to plaintiff's action,' unless it further appears that the employes .running the train could, by rellsonablecare. have prevented the accident. The statute requires that those running railroad trains throughincorporated towns and cities shall give notice of their passing by blowing the whistle, or ringing the bell, contiuuallywhile sorassing; and shall not move at a greater rate of speed than six miles to the hour; and, if these requirements are disregarded, and the train shall ilijure persons or sucb shall be of a of skill ,and company lIable for such lllJunes. But If the lI1Jury have. occurred if thEfwhistle had been sounded or the bell rung, '.and1the speed bad only six miles to the hout, then the company 'wilPl'1Ot .be liable on account of the running at a: greater rate of speed tbllIfslx miles to the' honr, or the neglect'to blow the whistle or ring the be'll. · The eugagedinrunningthe train when the occufl'edhave testified that' the whistle was sounded at the old
DUNNING .. BOND.
depot, and that the bell was constantly rung until the accident occurred, and that all was done that could reasonably have been done by applying the :brakes to prevent the accident, and that the train was- not run. at a greater rate of speed than six miles to the hour while passing through the city of Jackson. This evidence meets and balances the primajacie evidence created by the statute, and leaves the evidence on both sides to be considered and weighed as the evidence in other cases. In considering. and weighing the testimony of the employes of the defendant you will not presume that they are less trustworthy and truthful than other witnesses, but will consider the interest they may have in the result of the suit, if any is shown, the feeling exhibited by them, theiropportunityof understanding correctly the matters about which they have·testified, and the reasonableness of the statements madebythem,considered in connection with all the other testimony. You will apply the :same rules to the testimony of aU the witnesses. You will not presume that any of them have intentionally testified falsely, and, if conflict in their statements exists, you will reconcile them, if you can, and, i£yol1 you will determine from all the evidence which have most likely made the. correct statement. When the witnesses are equally more weight is to be given to those who testify that. an occurrence took place.thah to those who testify that it did not, unless those who testify in' the negative had know what did occur, and had their attention directed to it. This is especially so when an obli.gation is placed upon. those testifying in the affirmative, as in the case of .the employes in this case. It was the dutyof the employes of the defendant in running the train to do everything.theycouldreafwnably in their power to avoid the accident. If you believe they did this, as showJi by then your verdict should be for the .being in no fault in neglecting to ring the bell, or sound the whistle1 and only running at six miles to the hour,--as the accident was not caused by a failure to ring the bell or sound the whistle, or running at a greater speed than six miles to the hour, if there was such disregard of the reof the It was the duty of Hugh L. Dunning t,o use \all reasonable care a.nd caution in crossing the track of the railroad to avoid. the accident. The receiver, acting for the interes! of all concerned, and being the temporary owner of the railroad, had the right to pass the ov'er.the track in preference to :Mr. Dunning, or any one 'else j .aUdit .was the duty of the deceased when he approached the track to stop and look both ways to Bee whether there was an approaching train, and also to listen to ascertain whether one was appr()aching, and if he had. reason to believe one was likely soon to pass, this duty was the mote imperativej and if he failed to perform it, <)r if he saw the approaching train and did notw&it until itpassed.he.' toole the risk oithe acddentwhich. befell him, and the plaintiff is not entitled to recover unless the employes, seeing himjmthe track, failed and neglected tousesuch: means were reasonablyin'their power to .the accident.'. The. running the train had a right to presume that the deceased would not attempt to cross the;track,or, ii on it, would leave it if,there was tiIneto do' sOi
FEDERAL REPORTER, vol.
and was not required to stop unless there was imminent danger Of the collision; and, if there was, was then required to use all reasonable means in his power to prevent it. If, after considering and weighing all the evidence 011 both sides, you shall find that the accident was caused by the negligence and carelessness of the employes running the train, and from which they are not relieved by the contributive negligence and carelessness of the deceased, as I have stated, then your verdict should be for the plaintiff, and you should find as damages such sum as the proof shows was necessarily incurred in payment of phYflicians, medicines, nurses, board.bill, and other expenses resulting from the injuries received, including burial expenses, and whatever the proof shows his income would have been up to the day of his death, with interest on such sum up to the present time. You will also find what sum you believe reasonable as compensation for the pain and suffering endured by the deceased in consequence of the injuries received; but if you shall find there was negligence on the part of the deceased in a!tempting to cross the track, .as well as upon the part of the employes in neglecting to use the means in their power to avert the accident, then you will consider the contributory negl,igence of the deceased in mitigation of the damages to which'plaintiff would have been entitled had such negligence and carelessness not been committed by deceased. But if you shall consider from the evidence the contributory negligence u,pon the part of the dethat upon the part of the 'railroad employes running the 'train, your verdict will be. for the defendant. But, in considering the restimonyupon the issues submitted to you, you are alone the judges of the weight to be given to the testimony of each witness, and will consider the whole of it together, and find such verdict as you may right, under the testimony and these instructions given you by the court. .
PAC. Ry. Co.
TEXAS & PAC. Ry. Co., (BROOKS, Intervenor.)
(Oif'cuit Oourt, E. D.Loui8iana.
MASTER. AND SER.VANT-NEGLTGENCE.
The intervenor was a brakeman on defendant's road. and one of his duties was to tie the bell-cord running from the locomotive to the cars, after the locomotive was attached to the train. While discharging that duty the train suddenly started and he was thrown down aod injured. As to wheth.er the conductor had taken charge of the train and ordered it to be started the , evidence was in conflict; the intervenor himself, a switcbman, and another witness testifYing that the conductor W'as in charge. .This was corroborated tbe conductor's admissions and defendant's failure to account for the absence of the engineer In charge of the locomotive. For the defendant two of its employes testified to the contrary, and they were corroborated by intervenor's admissions, and by his failure to explain why he had not attached the . cord while the conductor was receiving hIS orders, as he might have done. DIld. that the weight of evidence was with the intervenor.
Intervention of Brooks on a claim for damages.
MISSOURI PAC. RY. CO. fl. TEXAS .I; PAC. RY.
Rice &; Armstrong, for intervenor. Howe & Prentiss, for defendant.
PARDEE, J. The intervenor, Brooks, claims damages against the receiver in this case, on the ground that while in receiver's employ as a brakeman or porter on passenger trains, and while in the discharge of his duty, he was injured through the negligence of the receiver. It is claimed that it Was a part of his (intervenor's) duty, in making up the train, to fasten the bell-cord which runs from the locomotive to the cars in rear; and that, on the morning of the 8th of August, 1888, while the train was making up at Gouldsborough, he was engaged in this duty, and was standing on the top of a tool-box at the rear end of the tender tying a bell-cord between the baggage-car and the tender, when, through the negligence of the conductor, the train was started before he was aware of it, which caused him to lose his balance, whereat he stepped or jumped to the platform of the car, alighting on some pieces of ice left thereon, causing him to slip and fall to the· ground, by which fall his elbow was broken and permanently injured. The master reports that, as to the fall of Brooks and the injury he received, there is no conflict of testimony; that at the time he was engaged in the performance of his duty; thatthe start of the train caused him to lose his balance and fall; that the train was started improperly by the conductor in charge thereof, who represented the receiver as a vice-principal, for whose negligence the receiver in law is responsible to other employes on the train; and that for his injuries the intervenor is entitled to recover the sum of $2,500 damages. 'fo the master's report counsel for the defendant filed exceptions as follows: ..Fir8t. Said- defendant excepts to the finding that the facts establish a presumption of negligence against the receiver. Second. It excepts to the finding that the claimant is entitled to recover the amount allowed him; the injuries are a legal basis for any reevidence not showing that the covery by him. Third. It avers that in any event the claimant cannot recover, because he contributed by his negligence to the accident complained of. Fourth. It avers that in any event the damages allowed are excessive, and should be reduced."
By agreement among counsel the report and the exceptions are submitted to the court on briefs. In their brief counsel for the defendant railway company make practically two points: (1) That in the conflicting state of the evidence the intervenor has failed to make out his case with reasonable certainty; and (2) the amount of damages allowed by the master is excessive. An examinationshows that the evidence in the case is conflicting and irreconcilable. The theory of the intervenor is that the conductor of the train started the train before the intervenor had time to perform the conceded duty of tying the bell-cord between the locomotive and the first car behind, alldwhile intervenor was performing that duty, and that such starting was the direct cause of the intervenor's injury. If this be true, it would appear that the intervenor has a clear right to recover. It is v.H8F.no.l0-52