GRANT ft. UNION PAC.
cited in favor of this proposition areas follows: Teachout v. Van Hoesen, 76 Iowa, 113,1 holding that where fraudulent representations as to the value of property to be furnished as part or the plant of a corporation to be organized, were made to induce a person to become a therein, he, and not the corporation, is the proper party to maintain an uction for such fraud. But in that case the fraud was against an individual. In this case it is against the corporation. In Nyse:wander v. Lowman, 124 Ind. 584, 24 N. E. Rep. 355, land had been exchanged ior stock in a corporation upon a fraudulent representation as to its value. It was held that the measure of damages was the difference between the actual value of the stock and its value as represented. That holding was no doubt correct. But here is a case, not of the transfer of stock by the stockholder to whom it had been issued by the company, or by his transferee, but of an issue of stock by the corporation itself to one who stood as an original subscriber, and received it as paid-up stock, upon the false and fraudulent statement that he had actually paid the amount in cash for account of the company. The case of Vailv. Reynolds, 118 N. Y. 297,23 N. E. Rep. 301, was also cited, but as it is to the same effect as the case last above it is not necessary to refer to it more particularly. _ The stock issued by the company to Griswold could not lawfully have been issued at less than par, and if by reason of the failure of the tiff to succeed in its business, or fr::>m any other cause, it depreciated in value, that fact cannot avail the defendant in this action. The motion for a new trial will be overruled, and judgment entered for the plaintiff for the amount of the verdict, with costs.
GRANT tI. UNION PAC. (Ofn'cutt Oourt, 8. D. Iowa, W. D. L
March Term, 1891.)
MASTER AND SERVANT-INJURIES TO SERVANT-l!bGLIGENOE. It is not negHgence on the pl;\rt of a railroad company to have
switches without lights on them in its yard, unless it appears that it was the common and uniform practice to have such lights, and that the switchmen had a right to expect them.
Where a switchman is run over while passing from one switch to another in order to turn the latter. the jury must determine whether it was negligence on the part of the company that the foreman, who had turned the switch, so that there was in fact no need for plaintiff to go to it, failed 'to inform plaintiff that the switch had been turned. The jUry must determine whether the engine was negligently run at a high and dangerous rate of speed, and a town ordinance regulating the speed of locomotiveljl within the town is to be considered. together with the rest of the evidence. Where plaintiff is injured while passing along the track the two switches by stumbling on obstructions by the side or the track, as he claims, while defendant claims that he slipped while attempting to get on the pilot of the moving engine, the jury must determine what caused the accident, and if they find that plaillti1f injured while attempting to board the engine he cannot recover. N. W. Rep. 96.
Where it allpears that theinjary resulted from a "pare aootdill1t" there can be 00 recovery. ,. ,
.' '. .' . ,
. Plaiiltiff's age, habits, ability to earn, expectancy ot lifel pain', and suffering, to, :gether w. ith the contingencies of human life, are to be oonsldered in estimating the clamages. .
S.4,VIIi-MIj)ASURE. 01' n"VAGES.
AtLaw. T. ),,[(J,hony, for plaintiff. · . .TOhnN.B(J,ldwin, for defendant.
SHIRAS, J., (charging jury orally.) In this case the plaintiff, John Grant" seeks to recover damages in the sum of. $25,000 against the ant, the Union Pacific, Railway Company, for injuries which he avers he received while in the. employ of that company, in November, 1887. Before passing to the discussion of the principal questions which it will be necessary for you to cOPsider and determine in this particular case, it will bE; well for me to instruct you upon the general rules that apply, in law, to parties who occupy tberela,tiollto each other of master and servant, and .also some other general principles which should have weight <lnd bearing in a case of this. character. It is a recognized principle of the law that persons who enter upon any given employment ass,ume the risks, hazards, and dahgersthat pertain to that particular busi.ness, when the same is carried on in a proper and· careful manner. Your common experience has taught. you that there are some of the businesses and avocations of life that are more dangerous in their nature than the ordinary avocations; and your common experience has shown you, gentlemen, ihat this business of railroading is particularly a business in the conduct of which there is risk, hazard, and danger. This grows out of the iact that in the management of railroads and trains, on account of the great weight of the 10comouvesRnd cars, and the 'speed at which they are run ,-'-from the facts which inhere in the very nature of the business itself,-a person who assumes the position of an employe of that character, whose duties call him about trains or locomotives when they are being moved, is of necessity subjectedtoa greater risk and hazard than pertain to the . Therefore ,it is true that a person who enters UpOli' this business of railroading assumes himself ,all these risks and hazards, no matter how· great they may be; that is to say, the risks llnd ha.zarqs thatgro)'lr,Qut of the business, and are inherent in it when properly carried on. He doeR not, of course, assume any risk or danger caused by the negligence of the railroad company. The duty and. obligation is placed upon the railroad company, as the master, to use orqiuarycare.in fp;rnishing employes a safe place and safe appliances'with which to perform thew.ork expected of them. Now. what is.xneant by"ordinarycare)"is that degree of care which a prudent in view of the cjtCUll,1stances tnat surround him at a principle of the law that when human given' time,'It lea' life and human limbs'are at stake or in danger, the exercise of "ordinary care" requires greater caution, foresight, and prudence than are re-
GltA:NTtI. UNION PAC.;R.y;<
quired ordinarily when; human life and liIn'bs are not in danger. But the law places the duty upon the employe himself,when he enters int(; a business of this character, which is dangerous in its nature, of exercising the same degree of care upon his part for' his own protection. The very fact that the business in which he is engaged is by reason of its nature a dangerous one, and that the ordinary demands of the employment will require the employe to subject himself to these risks and hazards, requires the employe upon his part to exercise all the care, caution, and foresight for his own protection which a prudent and careful man shOUld exercise when his own life or limbs are placed in danger or hazard. The duty and degree of care that are required of the master and of the employe are of the same character and degree, and are both defined as I have already stated. Now, negligence consists in the failure to exercise that degree of care which the law expects ora party under given circumstances. In a case of this character it is not sufficient, to enable the plaintiff to recover, that it be simply shown to you that he entered the employ of the railroad company, and while in that employ the accident happened, thereby causing the injury anddaIl1age to him; that is not' sufficient. Before the plaintiff can recover it must be shown, by a fair preponderance of the that the accide'.lt causing the injury resulted from some negligence upon the part of the railway company, or from negligence for which the railway company is in law held responsible. It is .a further principle of the law that, if it appears that plaintiff himself, by negligence upon his own part, caused the accident, orcontributed to the cause of the accident, he cannot recover. Of course, if the defendant company was not negligent, and the accident was caused wholly by the negligence of plaintiff, he would have no cause of complaint against the company, and could not recover. Furthermore, if the evidence shows that the negligence of both parties contributed to the cause of the accident, that defeats the right of recovery upon the part of the person injured. This is the doctrine which is known in law under the term "contributory negligence," and it is based upon the principle that the law does not attempt to separate the consequences of an act which hitS been brought about by the combined negligence of the two parties. When the negligence of both parties, master and servant, or plaintiff and defendant, has combined together to cause the accident, then the law' grants neither party the right to recover against the other. It leaves the parties just where their own acts have placed them. Therefore, in cases of this kind, it is necessary, if it should appear that a given accident was due to the negligence upon the part of the defendant, that it be shown that the negligence was th9proximate or immediate cause of the accident which oaused the injury. And, furthermore, if it appears from the evidence that the plaintiff him· self, by negligence upon his part, contributed to the accident, that would then defeat the of recovery which he would otherwise have. The jury are required, indetermining'cases, to weigh the testimony, and determine the credibility of the In determining the credibilityof witnesses the jury haves right to take into aecount the interest
they may have in the result of the <;ase,-either a pecuniary interest or Rny other interest they may have,-which might affect .the testimony they give in the case. Youhavearigbttoconsidertheirmeansofknowledge, their mode of testifying, their candor or want of candor, if such may appear in any witness, and all the other facts and circumstances that may be developed in the case, which will aid you in determining the weight to be given to the testimony of the different witnesses; or, in other words, the credibility of the witnesses on behalf of both plaintiff and defendant. In this particular case, perhaps I should say further that it is permissible for parties to put in evidence, as affecting the credibility of a given witness, any statements that he mll3 have made at other times, which may contradict in any material matter the testimony which he gives as a witness upon the stand, and this is upon the principle, which is well known to you, that if a party has voluntarily made statements at other times and places which are contradictory to his testimony upon the stand, it is apparent that he has been telling a different story, or giving different accounts of the same transaction; and when such is the case it is for the jury to weigh the circumstances, ano. determine the credibility and the weight to be given to the testimony of the witness who has testified before you. In the particular case on trial it is not disputed by the evidence that the plaintiff was in the employ of the Union Pacific Railway Company in November, 1887, the place of his employment being in the yards .of the company at North Platte, Neb.; that on the evening of NoveIl1ber 17, 1887, he met with the accident which resulted in .the amputation of his foot, leaving it in the condition in which it has been exhibited before you. There is no dispute in regard to these general facts. It is in dispute between the parties as to where the responsibility for this lies. Now, it is not sufficient, as I have said, for plaintiff simply to show that he was in the employ of the railway cOmpany, and while in its employ met with the accident and received the injury. He must go further before he can be entitled to a verdict. He must show that the accident was due to negligence upon the part of the railway Qompany, as the proximate cause of the injury which he has received. It is claimed in the pleadings, on behalf of the plaintiff, that there was negligence in four particulars. But perore I go to that, to make it a little more clear to .you, I should say that the plaintiff has introduced evidence tending to show that in the performance of his duty towards the railway company on the night of the 17th of November, 1887., while in its yards 8,t North Platte, he was called upon to turn a given switch, which has been spoken of in the evidence, I believe, as "Switch No.1," and that this was done for the purpose of permitting the locomotive, which was in charge of the foreman. Ryan, to pass in upon a given track; and that then plaintiff endeavored to pass from switch N(). 1 to another switch, No.2, distant about 300 feet; that the object of plaintiff in passing from switch No.1 to switch No.2 was to change the switch, plaintiff thinking at the time tha,t switch No. 2 was in snch a condition as that,. if it was not changed, upon another tra'.:lk, ."
GRAXT '1. UNION PAC. RY. CO.
and come in collision with other cars standing upon another track connected with the one upon which the locomotive was passing at the time. The evidence shows that, as a matter of fact, the plaintiff was mistaken as to the condition of the switch at the time; that in fact switch No.2 was not in such a condition as that the locomotive would pass upon this track where the standing cars were. The evidence tends to show that switch No.2 had been changed by the foreman, Ryan, after he had left the engine where plaintiff was engaged with others in placing coal upon it, and that plaintiff was not aware of that fact, and Bupposed the switch was in the condition in which he himself had left it an hour or so previous. The evidence on the part of the plaintiff tends to show that that was the idea which was present in the mind of the plaintiff, and that he conceived it to be his duty, after turning switch No.1 to permit the engine to go in on that track, to pasll immediately to switch No.2 in order to put that in proper position so the locomotive would not run down upon the wrong track and come in collision with the cars standing there, and in the effort to go from switch No.1 to switch No.2 he met with the accident which caused the injury. Now, on the part of the plaintiff it is claimed that the defendant company is chargeable with negligence in four particulars: First. That switch No.2 was not a switch with a light upon it, and therefore it was impossible for plaintiff, in the darkness of the night, to know whether or not the switch was turned; the reason being that if the switch had had a light upon it plaintiff would have seen its position from switch No. 1. By looking at the lights he would have known the position of the switch, and would have.seen there was no occasion for passing from switch No.1 to switch No.2 for the purpose ofattending to it. He would have seen from switch No.1 that it was turned, and in proper position. It is claimed that there was negligence on the part of the railroad company in not having a switch with a light upon it. Second. The second charge of negligence against the defendant is that the switch was turned by the foreman, Ryan, without communicating that fact to the plaintiff, so that, in the further discharge of the plaintiff's duty, as he conceived it to be, he to reach the second switch in order to turn it, supposing that it was in the condition in which he had left it. Plaintiff claims it was negligence upon the part of the foreman, Ryan, for which the defendant company must be held responsible, in having changed the condition of the switch without letting plaintiff' know of same. Third. That the engine was run at a high and dangerous rate of speed when the foreman, Ryan, was moving it down upon this track, for the purpose of passing by switch No.1, and along the track it was then proceeding upon. Fourth. That there were obstructions upon the side of the track, consisting of debris of one nature and another,-broken pieces of scantling, railroad ties, and lumps of coal, left there in such a condition as to render the way along which plaintiff was called upon to pass in going from switch No.1 to switch No. 2 in a dangerous condition. The claim of the plaintiff is that by reason of. these different facts and circumstances the accident was caused, and by reason of these several grounds of negligence charged against the de-
,iendantcompany hebns sustained or made up his Claim of negligence ,againsHhecompany, authorizing, him to recover a verdict at your hands. defendant these ditrerent allegations of negligence are denied.. ,·1tisfurther claimed on the part of defendant that plaintiff was guilty of contributory negligence; that is to say, that it was through his own fault, land his own want of proper care for his own protection, he received the injury which occasioned this damage to him. Briefly stated, gentlemen, these are the claims made by the parties. the switch had no Now, as to the first allegation' light upon it. There is no dispute in the evidence upon that. It is admitted;or we assume from the evidence, that it was a switch which had no light upon it. The question is, was that a ground of negligence? Does the fact that there was no light upon the switch authorize you in finding that the company was negligent in that particular? Now, as I have already said to you, the duty and obligation is upon the railroad company to exercise ordinary care; to put proper appliances upon its lines and in its yards for its employes when they are engaged in the performance of their duty. Has there been any evidence introduced before you, gentlemen, of parties who have skill and knowledge in that particular, tending to show that the use of switches without lights is negligence upon the part of the railway company? If the company has SOme switches in use without lights upon them, is that evidence of negligence on the part of the railway company? Is there any evidence in this case, gentlemen, to justity you in. finding that the railway company was negligent in not having a light on switch No.2? Now remember, gentlemen, in deciding a question of this kind, and all these questions in the case, you are to carry your minds back to the condition which the parties occupied at the time, just before the accident. To use a common phrase, as we all know, "hind sight is better than foresighti" but we cannot apply that rule in deciding a question of this kind. After the accident has happened we can, of course, look back, and say if this thing or the other thing had been done it would not have happened; but that is, not a fairway to decide upon a question of negligence charged against the defendant in a case of this kind. We must go back to the condition of the yard before the accident happened on that day. Is there evidence before you that would justify you in finding that at that time the railway company was guilty of negligence in having that switch there without a light upon it? If there had been evidence introduced, gentlemen, that it was the common and uniform practice among railway companies preceding that time always to have switches with lights,that that was the common practice, and that it was observed, and the employes had a right to expect that would be done,-that would be evidence tending at least to justify you in finding that the railway company was negligent in not having its switch thus equipped. But is there evidence of that kind before you, gentlemen? There is evidence tending to show, as I understand it, that in this particular yard some switches had lights and some had none. Now, before you arejustified in finding that the company was gUilty of negligence in this case you must
GRANT V. UNION PAC. RY. CO.
be satisfied by a fair preponderance of the evidence that, having a switch that way, in its yards, without a light upon it, was negligence on the part of the railway company, and that must be determined from the evidence in the case. If there is no evidence that would justify you in finding that, of course that would end that inquiry. But now suppose, gentlemen, that you should find that was negligence upon the part of the railway company,-having that switch there without a light upon it,-suppose you should find that,-there arises then another question as to the effect of the plaintiff's knowledge in regard to it. There is a principle recognized in the law that when a person goes into a service or employment and finds it is conducted in a particular way, that certain appliances are used, and he makes no complaint about it, but goes ahead and performs the work and labor with the appliances in the condition in which he finds them, and is not induced to remain in the employ by promises that it will be changed, ordinarily he is held to assume the risk that arises from that mode of carrying on the business. Therefore, if the evidence should satisfy you in this case,-and the plaintiff has testified that he was employed for a time in that yard, and knew switches were there without lights,-so, even admitting that you find there was negligence in that particular, is not the plaintiff himself to be held to have assumed 'any dangers that might arise simply from the fact that there were switches there without lights? It seeIIlS to me, gentlemen, that upon that issue you will have no difficulty in reaching a conclusion, as 1 have submitted it to you. The fact, however, even though you may find under the instructions I have given you that this cannot be considered as an independent ground of negligence,-the fact that the switch did not have a light upon it is a matter to be taken into consideration when you come to-the other facts in the case, because, of course, the conduct of the plaintiff himself is to be viewed in the light of all the circumstances that actually surrounded him at the time. Now, as to the second question, which is, as I have already stated, that this switch was turned by the foreman, Ryan, without the knowl.. edge of plaintiff. Assuming that the evidence would justify in finding that the switch was turned by Ryan, and that plaintiff did not know it was turned, and Ryan had not informed him of that fact, the question is, then,w8.s it negligence upon the part of the railway company, or Ryan, as the representative of the company, to undertake to take down the locomotive without informing the plaintiff of the fact that the switch had already been turned, so that there was no necessity for him to go down to where switch No.2 was located. Is there anything, gentlemen, in the evidence in the case that satisfies you that Ryan should have foreseen that plaintiff would make the effort to go from switch No. 1 to switch No.2? In determining that .you will take into account what the evidence shows the facts to be, and the position these parties occupied. Was it the duty of the plaintiff to tUfn these switches when locomotives were being passed over the tracks in that yard? If you find it was not his duty, and he had nothing to do with the switches, of: course Ryan or the company would not be charged with the duty of
informing him of ariy change. On the other hand, if the evidence satisfies you that plaintiff, in the performance of his duty, would be expected to look out for these switches, and have them turned in proper condition, so that the locomotives might pass over them safely, then the question arises, what would be the natural and reasonable expectation as to wbat the plaintiff himself would do if be was placed in that position, and did not know that switch No, 2 had been turned by Ryan? Now, if it be true that the plaintiff had turned switch No.2 an hour or 80 previously, and left it in such a condition as that it would need to be changed when this other locomotive came along, and he himself had not changed it, and he was required by his duty as a switchman to change it in order to allow this loconiotive to go where tbey desired to take it; the question then arises whether or not plaintiff was not justified in assuming and believing that his duty called upon him to pass from switch No.1 to switch No.2, and see that the latter was in proper condition· to prevent danger. And bere the absence of a light upon switch No·. 2 should be taken into consideration, because, if there was no light upon it, there was no way by which plaintiff could determine whether the switch was in the right condition or not by simply looking. It was in the nip;ht-time, and dark,and he could not Bee the switch or its position on account of the darkness if there was no light there, and could n(lt determine its position, andtberefore he was justified in going upon the knowledge which he then in fact had. Now, then, if the knowledge wbich be then in fact bad, .as he then understood it, was that switch No.2 needed to be turned, and his duty called upon him to reach it in order to turn it so this locomotive could be moved along safely, he was justified in making the effort; at least that is evidence that would justify the jury in finding that he was justified in making the effort to pass from switch No.1 tb switch No.2, although in fact it turned out that there was no real need for him to do it, because the switch had been turned by Ryan. Still you see, gentlemen, the questionas to tbis second charge of negligence-as to whether Ryan was negligent in ,not notifying plaintiff that tbe switch bad been turned-turns upon the question, not as to what plaintiff was justified in doing and assuming to do, but what Ryan should have foreseen that plaintiff would undertake to do if he was not informed that the switch had been turned. Was there any duty or obligation upon Ryan to notify the switchman, or the plaintiff, who was occupying that position, before be started, that switch No.2 had been changed, and it was not necessary for him to go to it? If you find there was negligence in this particular, that still does not justify you in finding a verdict for the plaintiff, unless you are satisfied that that act of negligence, assuming you find it was negligence, was tbeproximate cause of the injury, because, as I have already instructed you, it must appear not alone that there were acts of negligence, but that they, or some one of them, were the proximate cause of the injury itself. The next ground of negllgence is that the locomotive was run at too high a rate of speed. The duty and obligation is upon the railway
company and those who represent it in the management of its engines to exercise due care in that particular when these engines are being moved, and moved under such circumstances that the switchmen are called upon to perform their duties about the tracks and locomotives, so that the locomotives will cause more or less danger and risk to the employe. The duty and obligation rests upon the company to exercise due care,-such care as a prudent man would exercise under such circumstances; to see to it that no unnecessary risk or hazard is caused to the employe. You will have to determine that question under the evidence,"'-as to whether or not that locomotive was or was not run at such arate of speed as that it caused any unnecessary risk or danger t() the plaintiff in the performance of the duty he was called upon toper" form. There has been introduced in evidence an ordinance of the town of North>Platte regulating or fixing the speed at which locomotives may be run within the boundaries of that city. As I understand it, these ordinances are passed principally for the protection of the general public, so that, as the public pass along the highways and streets of a city, where they have a right to go, no unnecessary risk or hazard will be ,,<tused to them by locomotives running at too great a speed. The dinancehas been introduced in evidence before you, and all I can say 10 you in that regard is that you are to take the entire evidence in the .:ase,-a11 the facts and circuinstanceswhich the evidence discloses belore youj-and determine from that whether or not the engine was run at such a rate of speed as iIi your judgment was too great, and of such II. character as to be dangerous, thereby causing unnecessary risk· and hazard to the plaintiff when he was called upon to go about the tracks in the performance of his duty as switchman. The burden is upon the plaintiff to satisfy you of all of these facts. If the evidence fails to satisfy you of these facts your verdict must be for the defendant, upon . this question. The fourth charge is as to obstructions. It is claimed by plaintiff that there were by the side of this track, where he was called upon to go in passing from switch No.1 to switch No.2, obstructions in the nature of pieces of scantling, railroad ties, lumps of coal, etc. Youhave heard the evidence in that particular, and it is a matter of fact for you to determine what the real condition of the track was. The burden is upon the plaintiff to satisfy you by a fair preponderance of the evidence that ;'here were obstructions upon the side of the track before he can claim anything under this charge. If he fails to satisfy you that there were that ends the inquiry so far as that particular charge of negligence is concerned. On the other hand, if the evidence satisfies JOU that there were such obstructions there, the next question is, was that the proximate cause of the accident, or did the obstructions aid in causing the accident? This brings us to the consideration of the fact of just how this accident did in truth occur. Upon the part of the tiff it is claimed that when he started to go from switch No.1 to switch No.2 he was required to go at a rapid rate of speed,-that is, to run; and that he found the engine was following him at a rapidril.te,-at
such a.rate that he would not be able torench switch No,,2 ahead of ·. That he then to give the signal to the engineer his lantern, anq turning his head, and shouting. That,np,notiqe was takep of his sjgnal by the engineer. That the enup,to,him"and was about to pass him, and in some way he was tpe injury inflicted. It is, claimed .by plaintiff tPllt the., irpmediate cause of his falling in this way was the fact that he ,and had turned his head for the purpose of shouting to the engineer tQ ,stop the locomotive, and tllat he. tripped and and here comes in the significance of the:<:laiIQ upon. the,part of plaintiff in ,regard to these obstructions. Upon th,e part of the defendant this is denied. It is claimed that the plaintiff himself attempted, accident did not occur in that 'fay, whentpe cameup to him, to get upon the, front of it,-to mount what the "pjl!lt,"-and that in the effort to do tpEl;injury. Now,;gentlemen, if the Elvidence satisfies you that plaiI;ltiff himself attempted get PPOll the engine when it was going by at thEl speed it was actually traveling at,it is,a question whether or not. plaiptiffhimself not ,ofp..egligence.in makiqg the effort to getupop. engine. If .it be ,tru.e tl1at plaintiff. himself attempteg to get upon the engine, in making the effortto do that he met with the ticc;:ident,pf ,course, then appears that the accident was due to h,is ,cannot hold the company in the Plilrfqrmance it is not claimed, that he;was called upon to engilleat· all. Thiswasa !pere vQlu:tl:tary act Qf his own. Np command was giveI;l: him d,irecting him. to . It was a voluntary act:Quhts. part.· If he that effort, ,WI#! caught, that is a matterforw,hich he, cannot hqld the company reepopsible or liable to him in, ltthep, Qf course, turns upon a question of fact: Does the evidence satisfy you that that was in fact the way the accident happened? Here you hFe the point.!1s to there is the greatest divergence in the claim, of the plaintiff and defendant.. You have heard what. the fact the evidence on bQth .sides, and it isiol' you to in .that particular was.. l.Dqes the evidence satisfy you that plaintiff received his injuries from stl,lmbling upQn any obstructions th,ere upon the side of the track, aqp that as a result-that while he wa!"endeavoring to pass, in the performance Qfhia duty, from switch No.1 to swit9h No.2-he stumbled &n,d was thrown down in such a manner as to injure Or does the evidence satisfy yori that plaintiff found the locomotive coming up to him, and made an effort to get upoll the locomotive, and in making that effort recei"ed the injury Qf which he complainsJ .As I have said to yqu, if the evidenge you that the, accident happened in the way claimed by defend!1nt, that ends the case. If the evidence satisfies .you that the accident resulted f;iubstantiallyas by plaintiff, viz., tha.twhile he was to pass from switch No.1 to switch No. 2 he stumbled and fell and receivE!d injl;lfy, you .1l!rethen to determine, Whether. t11e was due .to apy negligellcf;1 uPQotlle part
GRANT t1. UNION PAC. RY.'CO.
of the railway company. Now, you will understand that, even though the plaintiff tripped and fell and received the injury in the manner claimed, that in itself does not render the company liable. It must still appear that that fall, and the consequent injury, were due to some negligence upon the part of the company. Many accidents mas happen when parties are employed in the service of railway companies in the performance of their duties as switchmen. Their feet may trip upon coal, or ties, or other matters, and they may flill and receive serious injuries; but cases of that kind may be what we call in law "pure accidents," and nerther party can hold the other legally responsible therefor. To enable the plaintiff to recover in this case he must satisfy you that the defendant company waS negligent in some one or more of these particulars thafhe has charged, and you must be satisfied from the evidence that that wastbe proximate cause of the injury. Or, if you find negligence upon the part of the railway company, if the evidence also shows that plaintiff contributed to the happening of the accident, that will defeat his right to recover. . If, under the instructions I have given you, you find for the defendant, you will simply so ·state. If, on the other hand , you find tor the plaintiff, you are then required to consider the amount of damages to be awarded him. In this particular case the elements of damage you are entitled to take into account in deciding the compensation to be allowed the plaintiff are the pain and suffering· occasioned to him by this accident in the past and which may be occasioned to him in the future, and also its effect upon his ability to labor. Now,of course, it is apparent to you that parties cannot bring evidence before you showing the exact amount in dollars and cents of damages in a case of this kind. It is not like a case where property is taken or of damage to property which has a market value. In such cases proof can be brought before you as to its market value, and the amount of damages is a matter of mathematical calculation; but that cannot be done in a c!lse of this kind. In such cases as this you are entitled to take into account the facts surrounding the injured party, his age, possible expectancy of life, and the position he Occul__ded, and the amount of money he earned. When a person is engaged as a. laborer, and his wages are so much, of course the money loss to himie not so great as if he occupied a higher position, and had higher ability to earn money. A man who can earn a thQusand dollars a year, and is deprived of his. ability to dOBO, does not, Mcourse; suffer as great .pecQniary loss as, though. he were able to earn $2,000. Still, as I have said,all the cando is to bring in what the factsa.nd ,each c/l.se,-the age of the plaintiff, his habits of life, his ability to earn money, his occupation. and the effect upon these of the injury he has received. Evidence has been introduced showing his expectancy of life. Now, it is not understood that you shall take the expectancy oflife ola man, and thenflgnre up that he has been deprived of his ability to earn so much money for each one of those years. This would not beafll.ir way of estimating
the damages, because, as we all know, it is impossible to rletermine whether a man willlive out this expectancy of life or not. These insurance tables are based upon the probabilities of the average human life. It may be this man, if he had not received the injury, would not have lived a year, and he may live longer than his expectancy of life. There are so many uncertainties and contingencies in human life. We cannot say whether this man would have continued to earn $50 a month; and, on the other hand, he might have earned a larger amount. So you cannot take this and figure it out on a mathematical basis; but, taking all these facts into account, and remem.bering the uncertainties and contingencies of human affairs, it is for the jury to determine the fair lump sum which will compensate the plaintiff for the pecuniary damage caused him by the injuries he has received. Of course, if you find for the plaintiff, you should remember that this sum is awarded now,-it is Il.warded in lump. He receives it all at once, and it becomes free from the uncertainties of human life, and due consideration should be given to that fact in estimating the damages to be awarded. In cases of this kind, where there is evidence showing that the party has been put to expense for nursing and the services ot a physician, that is another element of damage; but it is not claimed in this case, and there is noevidence before you showing that such lill expenditure has been made, and you cannot take that into account, but you will estimate, in fixing the amount of damage, such a sum as ,will compensate the plaintiff for the pain llJldsuffering caused him in the past and that will be caused in the future by the injury he received, and the pecuniary loss caused him by its effect upon his ability to earn money. Verdict for defendant.
In re AH LUNG.
(CXrcwtt Oourt, N. D. OaUJom1.a. February 28. 1891.)
Order 2085 of the city of San Fra.ncisco fOrbids any apothecary or other person "to sell, barter, give away. dispose of. or deliver to any person in the city and county of San Francisco any opium or morphine, or any extract of opium, or'llroduct thereof, except upon the written prescription or written order of a practiclDg physician." Section 7 of the order forbids any physicIan to prescribe "any ,of said substances, products, extracts, preparBtions,or compounds for the purpose or with the view of any person taking the same for, curiosity. or to experience ant of the sensations produced thereby, or to Indulge in the use of the samet * * for Bnypurpose except bona fide medidal purposes." 'Held, that IIUCIl order forbids the lIale of smoking opium. ,
Habea8 00ryuB. !.r. D. Riordan, fof petitioner. J. D. Page, for :t:espondent. Before SAWYlj:R, Circuit Judge.,