·. FEDERAL REPORTER, vol. 40. port be so-amended as to find that they have been amply compensated for their services in the ·case by the amounts already received from the trust funds, and that no further allowance be made to them. That on the compensation of Ballinger, Mott & Terry and Willie, Mott & Ballinger, the said master's report be so amended as to find that they are entitled for their services rendered in and about the said suit the sum 0-1" $32,500, and that they should be allowed such sum subject to credit for the amounts received on account either from the trustees or for services rendered to the· receivers. That in the matter of compensation of Goldthwaite & Ewing, the master's report should be amended so as to recommend an allowance of $2,500 for their services in and about the sai'dlitigation. That, as amended, all exceptions to the said report be, and the same are hereby, overruled, and the said report as amended be, and the same is, approved and confirmed. .
RIVER Lmnnm Co.
CONNECTICUT RIVER LUMBER CO.
(Ctrcuit Court, D. VIlrI'ItOtlt. October 22, 1889.)
AUBITRATIOlf AND AWARD-MISOONDUCT OP
The facts that one arbitrator unconsciously permits his jealousy of the other, who bad often been selected as arbitrator in similar causes, to slightly warp his judgment the selector of the other arbitrator, and that the other, from lack of independence, adjusts his jUdgment to balance that supposed leaning, do not vitiate the result honestly reached by them.· .
. ; ..
That the arbitrator selected by defendant in choosing a third conslIlts with defendant with·the oonourrence of the other arbitrator, and without objeotion from the orator, is not a vitiating irregularity, where the result is the selection of one satisfactory to all.
In an aotion to set aside an.award of 11,000 aa damages to premises by ftoatinr logs, it appeared that a substantial part of the damages allowed was for thebresking of the bank of the river where it was supposed not to have been broken before. . From facts not then available it appeared that the bank had been broken before. The master found that the actual damages were not above $600. The amount allowed by the arbitrators for the broken bank was not ascertainable. HeUl, that the defendant might elect to remit UOO, and, upon failure to 80 remit, that the award should be set a,ide.
SAME-MISTAKE; IN FAOTS.
At Law. Action by William R. Silver against the Connecticllt River Lumber Company, to enforce an award, and suit in equity by Connecticut River Lumber Company against Silver, to set aside the award. Henry C. Ide and Edgar Aldrich, for the lumber company·. Fletcher· Ladd and William Heywood,. for Silver. WHEELER, J. This action at law is brought upon an award byarbitrators for damage done to lands of the plaintiff by logs of the defendant floating in Connecticut river. The amount of the damages, and not the
SILVER II.CONNE<:'l'ICUT RIVER LUMBER CO.
liability, was submitted, but the parties, by the terms of submission, agreed to perform the award. The defendant insists that no liability follows damages so done; anel that, as none was awarded 0):' submitted, no right of recovery arises from the award. The river is navigable for such purposes, and as such is a highwaycommon to all, and ordinarily 110 right to recover for damages done by logs floating upon it and carried by the 'elements would probably exist. Gould, Waters, §§ 90, 98; Thomp80n v. ImpT01;ement Co., 54 N. H. 545; Carter v. ThuT8ton, 58 N.. H. 108. But the lop;s might be put, or be left to be taken, into the river in such large num bers at a time as to be dangerous to the shores of the river and .lands adjacent; and that negligence towards, and disregard of, the rights of the riparian proprietors might create a liability to them for damage done in consequence. Ball v. Herbert, 3 Term R. 2,1')3; Hainesv .. Welch, 14 Or. 319, 12 Pac. Rep. 502. Whether such negligence caused or contributed to this damage is not found, and is not platerial.. The defendant's officers and agents chose to waive all question about that, and contest the claim of the plaintiff in respect to amount only; and the award, if good, would make the obligation to perform it by paying the amount awarded, complete. This suit in equity is brought to set aside the award for partiality and misconduct of one of the arbitrators, for fraud pf the plaintiff in the aeupon the award, and for a mistake of all in making the award for too much. Both causes have been by stipulation of the parties sent to a referee and special master, who has found and reported the facts. The president of the orator chose one arbitratpr, and the defendant in the equity case chose another, and, if these two did not agree, thllY were lA:\. choose a third. River tiums in that region were exposed to and frequently suffered damage from floatinp; logs. The chosen for the orator was a hill farmer, who had at several tiines so been chosen and acted in that capacity, before. The one chosen by the defendant was a river farmer, who had experienced some such damage, but had made no cll!; 11 for it,and who thought the remedy f()r such damage was not sufficiently speedy and certain. The president of the orator did not know his situation and views, but one of his employes who as.sisted him knew that this arbitrator was a river farmer. No objection was made on this aecount, and any bias he might have from this situation must be considered as waived. Fox v. Hazelton, 10 Pick. 275. As the amount of the damage, and not the question of liability, was what was submitted, his views of what the law of the subject was or ought to be would be immaterial. He was a little jealous of the other arbitrator, because of his being chosen by the orator, and of his former acting as such. 1'he master finds that honestly and without cQnscious purpose he suffered these things to, and they did, a little warp and bias his judgment in favor of the defendant against the orator, and make his estimate of damage higher. The principal of these things appears to hav.e been the attitude of the other arbitrator. This arose upon the occasion, and was not inherent. From lack of independence and strength his judgment appears to· have become adjusted to balance the supposed leaning of that otherarbHrator. v.40F.no.4-13
The views; opinions, and inclinations oftriers, as they arise inthe course of proceedings before them in respect to the various phases of the s)lbject and positii6nsJof o11e another, ought not to disturb the result honestly reached by, thew. The strength 'of minds, and their capacity for dealing with conflicting claims and interests, are much diversified, and triers cannot be selected with any certainty as to course of to be adopted or 'to be reached. Arbitrators are judges chosen by'the parties for themselves; and, when so chosen, they must be taken as they are, with their weaknesses and frailties, of wbichall have ,some; and while they act honestly .and fairly, accordlng' to such abilities as they have, with reference towhat is' submitted to them, ,their proceedings are valid and binding. Bac. Abr. "Arbitrament and Awardj" Van Cortlandt "i. Underhill, 2 Ch. 339j DaV'!} Faw, 7 Cranch, 175. ' In choosing the third arbitrator he consulted the defendant with the concurrence of the other arbitrator, and without objection from those acting for the oratqrj more, apparently, to avoid objectionable men than to give the defendant his choi<le; The result oUhe consultation was favbrable to a choice . by the arbitrators themselves, and not by the defendant, and one satisfactory to all was selected. Here is 110 vitiating misconduct or irregulal'ity.· Nothirigabout in question, according to the standard indicated, or about the proceedings, when given the latitude which necessarily belongs to sl'liCb'tribunals;llppearsto be adequate to disturb this award. "Wilter-Powel"Od."i. (hay, 6 Mete. 131; Mcd'IJi11e v. SocUty, 123 Mass. 129.' ; , A substantial 'part of; thedamages'claimed and allowed was for the breaking oftbe, bank' of the river by these .logs where it was supposed DoHo have been hrokenibefure; .The 'question whether it:had been broken· before, or was broken by these logs, appears tohave been fairly presented and tried, upon such proot'Saswere at hand, and such appearances as were visible. The master' finds, .from clear proof not then available, that the bank 'had been broken at that place before. So much of the damages as was allowed for tha.twa:s for what did not exist, and should not, and would not, have been allowed for, if that fact had then been known. The amount of the 4amages allowed for this is not ascertainable. The master hastbtind the actual damageIiot to be above $600. The arbitratol'sfuighf haveaward'ed more than that without including this supposed break, ,and they might have awarded less. What amount they would :have-awardEid 'had been' excluded is also uncertain. IfSinew ttialcOl1ld 'be had, tha.t might be proper; but there is no mode of obtaining one. To wholly set aside the award' for this cause would be"harsh, and does not appear to be absolutely necessary. The orator, in asKing equity, should: be willing todo equity by paying the amount of actual damages\ according to the finding of the master in the proceedinlfwhii::h-he'has in"ioked.No injUstice to the omtor is apparent from, compelling' p8iythenf of that,. The defendant may prefer to remit the excess to having the award set aside. If so, that opportunity can be afforded in analogy toaUowing a remittitur of damages to avoid the granting of a new tnal:beeause they are excessive; Moore "i. Luckesa, 23 Grat.
HOWA,$:P fl. :PEt>"WARE&R·..
160; Overby v. Thrashffr't 47 Ga. lO;.Rook V. Rank; 13 Atl.Rep.' To allow the plaintifI'in the action at law torenlit$400 and retain the right to the balance of the award seems to he just and.proper in these' cases. As neither party was in fault about this· mistake, the decree should be without costs. Let a decree be entered that the plaintiff in the suit at law, at his election, within 30 days, remit all but $600 of the award, and take judgment on the report for that sum, with interest and costi aodthat on failure tomo elect the award be set aside, and judgment be entered in the action at law for defendant.
HOWA.RD '11. DELAWARE
& H. CANAL Co.
!fASTEll AN]) SERVANT-NEGLIGENCE-PROXIMATE CAUSE.
Plaintiff's intestate was a trackman running a hand-car, under direction of tbe section bOSS, towards an approaching train, to which the boss had sent a flag by one of the trackmen, to warn those in charge of the train of the. approach of the hand-car. The persons in charge of the .train failed to keep..a;100ko)lt, and ran into the hand-car before those in charge COUld get out of the way, and intestate was killed. Held., that the negligence of those iIi charge of the train caused rl!he injury. Trackmen are not fellow-servants of those in chal'ge of trains. Rev. Laws vt. §§ 2188, 2139, provide that the person or corporation negligently causing the death of another shall be liable to an action in the name of the personal representative for the benefit of the wife and next of kin, and such damag-es may be given as are just with reference to the pecuniary injury resulting from. such death to them. Held that, in an action for the benefit 'of the collateral kindred, the measure of damages is what the deceased would probably have 8IJcu,IQulated afterwards if he bad lived: and, where the deceased has accumulated nothing for any one up to the time of his death in middle life, only nominal damages will be awarded. A declaration which sets forth adequately the rightot the personal representative torecovel' is S1i1II.clent wIthout alleging specifically the rights ot the respective distributees. .
DEATH BY WRONGFUL ACT-DAMAGES.
At Law. Action for damages for wrongfully killing plaintiff's intestate. David E. Nuholson and Joel (J. Baker, for plaintiff. John Prout and Henry Ballard, for defendant.
WHEELER, J.Clary, the plaintiff's intestate, was. about thirty-seven years old; had three brothers and two sisters, no wtfe, children,o.r parents; and had accumulated no property. He was employed as a track· man by It section boss of the defendant's road; and, with four others, under ,direction of the boss, was running a hand-car over a part of their section towards a train coming from the other way, to which the boss had sent their signal-flag by one of the tr!1ckmEm, to warn those in charge of the train of the approach of the Neither the ennor anyone in charge of or on the train was keeping any lookout
ahead as it approached the hand-car, and no one on the train saw it till within two or three rods of it. The trackmen supposed the train would slow up as it approached them, in obedience to the warning, and came so near it before stopping to take .the hand-car the track that the boss saw it would be struck by the train before they could get it off, and told the IDen to run it the other way. They tried to do so, but could to get away from the train, and he directed not move it fast them to abandon it. In jumping from it, Clary was thrown under it, the engine struck it, and he was instantly killed. The statutes of the state provide that when the death of a person is neglect, or default as would, if death had caused by such wrongful not ensued, have entitled tHe party injured to maintain an action therefor, the person or corporation that would have been liable if death had not ensued shall be to an act,on1n the name of the personal representative for'the benefit of the wife and next of kin, and that such given as.arejust, with reference to the pecuniary injury damages may resulting from suuh death to them. R. L. Vt. §§ 2138, 2139. This action is brought uponlthis statute, for the benefit of the brothers and s\sters, as nex.t Of kin, and has been tried by the court upon waiver in writing of a trial by jury. '1'he claims that Clary was negligent in remaining so long u!pon the car, and in jumping from it, and thereby contributed to tpe injury; that the collision was caused by the negligence of the flagman, a fellow-servant. with Clary, in giving wrong information to the trainmen about where the hand-car would be met; and that, if it was caused by negligE:l1ce o(the trainmen,all were so fellow-workmen with Clary that the defendant is not liable to his representative for it. . .Clary coUld see the train coming, and could have got out of its way; but, with'J,the'others, he relied upond ue respect ofthe trainmen to the f;1.ag, and to the directions of the boss, for safety; and, in view of what he had a right to rely upon in those respects, he does not appear to have been negligent of duty to tlitnself or others in staying at hi\! place on the car as he did. He was moving backwards with the car, working it, with the others, to his utmost strength, when directed to abandon it; and appears to have been thrown before it, by a misstep, caused by haste in turning and jumping, made necessary by the nearness of the train, and ledges of rock which prevented 'jumping off·ftomthe side of the car on which he was. Natural instinct would impel him to do what he could to save himself, and nothing shows that he did not obey it. , The testimony is ,conflicting as to what the man who carried the flag told those in charge of the train about where the trackmen and hand-car would be. Whatever that was j the flag of the sectionmen itself was a. warning that they were on the track somewhere near, and wereto be approached with· and it would be in force from the time when the flag was observed;,until they should be passed. To rUn the train towards them, after that warning, without keeping any lookout ahead for them, was a. neglect of duty required for their safety as well as for that of the train. This negJ.ig0nce appears to have caused the collision, and the in-