WARD V. CHINA MUT. INS. 00.
going opinion, and from these facts it is by the court considered and adjudged that the respondent M. A. Murphy, in making and filing the complaint. and causing the arrest in question, committed a contempt of this court, for which contempt it is by the court ordered and adjudged that he, the said M. A. Murphy, pay a fine of 8100, and that he be ' imprisoned by the marl:lhal until the fine is paid.
MOT. INs. Co.
November 5, 1890.)
(Oflrcuit Oourt, S. D.New York.
K.UUlfB INSURANCE-DENIAL OP SEAWORTHINEss-BILL OP PARTICULARS.
In a suit on a marine insurance policy seaworthiness is a matter of warranty on the part of the assured, compliance with which must be averred in the complaint, and is put in issue by a denial, and, though the defendant unnecessarily pleads unseaworthiness as a defense. he will not be required to furnish a bill of particulars.
Motion for bill of particulars.
B. W. Huntington, for plaintiff.
Bull, for defendant.
LACOMBE, 'Circuit If the alleged "unseaworthiness" were in fact a separate and affirmative defense, I should be inclined to grant this motion for a bill of particulars. Seaworthiness,however, iSR matter of warranty on the part oftha assured, ahd such warranty must be complied with to cntitle him to recover. Such compliance must be pleaded by him, or his complaint does not set forth facts sufficient to constitute a eaUl;e of action. Under the state practice the averment of the fifth paragraph of the complaint may be sufficient tofulfill this requirement. If it is not, then the complaint is defective, and demurrable; and such objeclion may be raised on the trial by a motion to dismiss on the pleadings. If compliance with the implied warranty of seaworthiness is suf- . ficiently averred in the complaint. issue is joined thereon by the specifip denial in the answer of every allegation contained in the fifth paragraph of the complaint. Of this issue the plaintiff haMs the atp.rmative. It has been held in this circuit (Lunt v. Insurance Co., 6 Fed. Rep. 562) that upon the the plaintiff may rely upon a presumption to establish the affirmative of that issue, -and that he is not called upon in limine to give of his compliance with the warranty; but that does not· change the issue itself. It is still one of which the defendant holds the' negative, and under which he may introduce evidence showing that the vessel was not in fact seaworthy. There seems, then, to be no necessity for pleading unseaworthiness as a distinct and separate defense, and no" ground, therei'ore, for requiring the defendant to furnish a bill of partic-
ux· .". TEXAS & PAC. Ry.Co.
(Ok'cuit Court, W. D. Texas, EZ Paso Division. October 27, 18110.)
RAILROAD COMPANIES-KILLING CHIi.D ON TRACK-EvIDENCE.
In an action against a railroad company for the killing of a child, a witness for plaintiff testified that the engineer saw the child on the track in time to prevent the accident; that witness called to the engineer to stop when the tender of the backing engine was within six feet of the child; and that the engine was going very slowly, and could have been stopped within four or five feet. Held, that the evidence was sufficient to sustain a verdict in plaintiff's favor, though substantially denied by the engineer and a switchman in defendant's employ. who both testified that it was impossible for the engineer to see the child jthat no warning of its presence was given until the tender was within three to five feet of the child: and that the engineer immediately reversed the engine. but did not succeed in bringing it to a stand until It had run eight feet, and killed the child.
NEW 'fRIAL-EXCE88IVE VERDICT.
A verdictof'$2,500 in favor of the parents, for the killing of a healthy, sprightly, five-year-old child, does not clearly show thai the jury committed some palpable error. or totally mistook the rule of law by which the damages are to be measured, or were swayed by passion and prejudice, 110 as to warrant the court in settini' aside the verdict as excessive. , .
At Law. On motion for new trial. W. C. Henderson and Brack <to Neill, for plaintiffs. B. G. BidweU and Peyton F. Edward8, for defendant.
MAXEY,J. .The in its motion assigns the three following grounc1s for setting aside the verdict returned at a former day of the pressimt term: . "(I) The verdict of the jury is contrary to and not supported by the evidence. (2) It is contrary to the law, as given in charge by the court. (3) The verdict is clearly excessive, unjust, and unreasonable." No objection is made to the charge, but it is insisted that, under the instructions, there was no evidence upon which to predicate a finding in favor of the plaintiff. If it be true that there was an absence of testimony connecting the death of plaintiffs' son with the negligence of the engineer who was af the time operating the engine, correct practice wOllld have authorized the court to. direct a verdict for the defendant. Under such circumstances, thesubrni::lsion of a case to the jury would be useles,s formality. Says the supreme court: . "It is the settled law of this court that, where the evidence given at the trial, with all the inferences that the jury could jnstifiabl,Y dPaw from it, is insn fficien t to support a verdict for the plaintiff, so that such a verdict. if returned, would be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant." Randall v. Railroad Co., 109 U. S. 482, 3 Sup. Ct. Rep. 322; (Joodlett v. Rail1'oa·d Co" 122 U. S. 411, 7 Sup. Ct. Rep. 1254; Kane v. Railway, 128 U. S. 94,9 Sup. Ct. Rep. 16.
.But it is said by the court in the case of Goodlett v. Railroad Co., aupra, that. . "Where a'cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to principles of law involved." Railroad Co. v. Stout,17 Wall.