206

I'EDERAL

vol. 49.

tion of this. plaintiff if his. on the Morri&1 taking the initiative in this matter, whell it appears that he cause with the defendants to defeat the plaintiff's action. Theissl.lesare found for the plaintiff., Judgmentaccordingly.

ATCHIBON;

T. & S.' F. R. Co.

tI.

HOWARD.

(OCrouit OOU'I't of ,AppeaZs, Eighth. Circuit. February 8, 1892.)

1.

NEW TRIAL-DISCRETION OJ' TRIAL COtfRT.

I,

Tbe question of anew trlaJ. rests In the sound discretion or the trial judge, and a refusal thereof is not reviewable In the circuit court of appeals.

It is not error for a federal judue to express hlsopinloil as to the weight which ought to be a'!ven to the lltatemeu,t of '& witness, When the jury is in fact left free to discredit ihe Btatement.. . ' ,. 8. . , WtieD, Uuder such circumstances, the lIubstance only of thecourt'i language is IlIlvenrUi the bill of excelltions, it must be . preaumed that it did not transcend the llmltaQ1 judicial dlscretlolk .: .. .' '. .
" MAsTBa ,.iN» SBRVANT-PERiONAL lNroRIES-CONTRtBUTORY NBGLIGENCB.

INSTRUCTlONS-OPDrION ONlllvJDENCL

In an action by a locilmotive fireIDllDfor JlerllonallojurleSSUS1Jaliied by the blowlDg out. of a boiler flue,tl\e statemllnt of Witnesses t1;lat the accident "might" have been due In part to the manner In which the fireman cast lumps of coal into the fire.box .Ii losuftlcient to justify submitting to the jury the question of cootributory when there Is no evidence as tp his manner of in coal.

In,E1T()r to the Circuit Court of States for the District of ColoradQ.· ;, Action, by. Frank Howard against the Atchison, Topeka & Santa Fe Railroad Company for ,personal injuries,. Verdictanli judgment for plaintHf. · brings error. Aflirm.ed· . Charles E. GU8t, 'for plaintiff in error:'. Belore CALDWELL, Circ:uitJudge, and SHIRAS and THAYER, District Judges. THAYER, District Judge. This iSll suit for persona] injuries which the defendant in tlrror sustained in Mareh, 1890, while in the service of' the Atchison,Topeka & Santa Fe Railroad Company as a locomotive fireman. On the trial in. the circuit court. it appeared that a fl ue-pocket was blown out of the boiler of the locomotive on which the deJendant in error was employed, lind that he wall very severely scalded by hot 1\ flue-pocket," so termed, is a steam which escaped from sh,!.>rt flue whi()h extends i l1 to the boiler for about six, or eight inches behind the flue-sheet, and is closed at thtl inner end. Such>" blindflues; " or "fi ue-pockets, as they are generally called ,a.1'6 located near the bottoDl,of the ,fj.ue-sheet, P-!1d Open into th,e fire-box. T,hey are so that they ,tJ;l,ay be tl;I,l:t.,en out .or withdrawn when it to remove sediment or in()rustations that have colb;ottom of the boiler. Theusuul method of /lttaching flue.lected

ATCHISON, T. & S. F. B.CO. C/. HOWARD.

207

pockets to:the flue-sheet of a boiler,so that they cannot be blown out, is to expand the flue on the inside next to the flue-sb eet, thus forming Rshoulderwhich abuts against the sheet. The locomotive on which the1defendaht in error was employed when injured was an old one, but it had beetithoroughly repaired and put in order about a year prior to the accident. In the course of the trial in 'the circuit court the defendant in error called a witness by the name of Sturdy, who was the boiler-maker who had repaired the boiler immediately after theflue-pocket in question was blown out. This witness testified, in substance, that while making such repairs he discovered that the flue-pocket had been put in originally ina faulty manner. by reason ofits not having been expanded enough to give it a'sufficient shoulder to prevent it· from being blown out. On his cross-examination, however, he was confronted with a letter written by him to his superior !'officer. shortly after the da'te of said repairil)in which he· had reported; that· " the ,right causa of theflue-pocketbeing blown,out wBsunknown,unlessitwas due to a sudden jar against 4luB-sheetand aheavy.pressrire ohteam; thll.tthe was good·, and had been 'put back iii the boiler." It is stated in the bill ofe%ooptions that "Sturdywas,theoniywitness whoassuniedto know how the flue-pocket had been originally put in.'" It is further said in the bill that there was "some testimbny*:'.· * tending to show that the blowing out of the pocket might have been caused by throwing heavy.hunpsof coal into the fire-box;" and that ee the engineer testified that the defendant in error had thrown some coal into the fire-boX shortly -before the accident, but ihathedid; not notice in what manner it-was ,done; II 'alSo, "that 'several large lUJtlps of. unburned coal were' found' in the fir6'-11Ioxiafter the flue-pocket 'was blown out." The foregoing .stantially aBofthe testimony preserved in the record relative to'the cause oUhe accident;;· but the bill pf: exceptions does not purport to contain all, of thetestiOlony, or to 'give anything morEi than a short sum;. mary.of'the.cbargeiinder which the caul!ewas sUbmitted to the-jury:. _" JEhe·flrsterr.or relied upon' in: this Court, is 'the liefusal court to grant the plaintiff in error a new trial. Counsel for the railroad company claim to have been surprised by the testimony of the witness Sturdy, above referred to, and on that ground they asked the circuit court to award a. new trial, which motion was denied. It is sufficient to say of the alleged error that we cannot notice it. The granting of a motion for a new trial is a matter resting in the sound discretion of the trial judge, and we are not authorized to review its action in that regard. Railroad 00. v. Horst, 93 U. S. 291-301; Newcomb v. Wood, 97 U. S. 581. Exception is also taken to one paragraph of the charge. in which the trial judge is said to have "charged the jury, in substance, * * * that the only witness who assumed to know how the flue-pocket had been originally put in was the witness Sturdy, and that the jury ought to accept that as to the manner in which the flue had been put in originally, and find whether such was a safe or negligently faulty manner

FEDEaAL RErORTEll.,

vol. 49.

We discover no niaterial error in this direction,-none that would warrant a reversal. The trial judge had the right, if he thought proper, to express an opinion as to the weight that ought to be attached to the statements of the witness, and it is not apparent from the record that he did more than to express an opinion. Nudd v. Burrow8,91 U. S. 434-439; Railroad Co. v. Putnam, 118 U. S. 545,7 Sup. Ct. Rep. 1; U. S. v, RailrfKl,dCo., 123 U. S. 113, 8 Sup. Ct. Rep. 77; Lovt3joy v. U. S., 128 U. S. 171, 9 Sup. Ct. Rep. 57; Simmons U. S.,12 Sup. Ct. Rep. 171, (October term, 1891.) The exact language of the court is not reproduced in therecord,-the substance merely is stated;; and We would ba compelled to presume, in aid of the judgment, that what was in fact said did ;not transcend the bounds of judicial discretioJ);'. in any, the jurors appear to have beeri left at full libe!:'ty (notwithstanding what was said by the court) to· discredit the of the witness Sturdy if they thought proper. Complaint is also made, and an exception was saved, because the ql,lestiol). ·of contributory negligence was withdrawn from the consideration of:thejury. In this respect we think there was no error. Some appear to have suggested that the blowing out of the flue-pocket might have been due iu .part to the manner in which lumps of coal fire-box;'but,so,far as the record shows, none of them went $0 far as to express the opinion that the accident was so occasioned. The tllfiltjmony introduced on this point amounted to no more than a of a possible cause of the accident. There was J;l0 evidence offered in supportoftbe suggestion that would have warranted the jury in fiQd.ing that the defendant in error was guilty of contributory negli. geIICE!. iTo have made out a case entitling the court to submit that issue to thejul'Y it should have been shown that coal was thrown into the firebox: in lumps of unusual with unusual and unnecessary force, and ther.e. was no such evidence or proof of circumstances from which such factElco\lld be legitimately inferred; No other exceptions were takenw,the ItCtion of the. trial court, and, as we find no material error alreadyconsidered,the judgment of the circuit court is affirmed.
Of putting it in.'"

CITY, F.

S.

&. M.

R.

CO.V.

STONER. STONER.

209

KANSAS CITY, F. S. &; M. R.

V.

Court 0/ AppeaZ8, EilJht CircuU. February I, 1892.)

L

CARRIERS 011' PASSENGERS-9<>LLISION 011' TRAINS-INSTRUCTIONS.

When 8 is injured by the collision of trains at a crossing of two r;il roads; eacli company is liable in full if its servants are negligent; and hence in an action. both it is proper to refllse an instl'1lction requested by one, correctly definingtl:leuuty of the other with res.pect to the care to be exercised in approachin.g tbe.oroBsing, and casting upon it the liability in case the jury found a breach of the duty. Both companies are bonnd to the same degree of care, and the instruction sbdulo'be made applicable to both.

lJ, BiME.

In l:l.UA1I: all action one of the companies requeste.da charge that its employes were only bound to exercise ordinary prudence; that, in deterlllining whether they did so, all the circumstances should be o0nsidered; and that, if they did exercise orillnll,ry. Prude,nce. the company was .not liable. "although the jury found that they nerformed some acts or omitted others which in the light of subsequent events i : would have prevented the collision." Held, that it was not error to omit the quoted since it contains an independent proposition, which should have been preferred asa separate request. . .,

8.

Where a collision occut'S between the regular trains of two railroad cOlllpanills at a.crossing th.e.ir tracks in b,r.oad daylight, a presumption, arises of negligence. on the plIort of one or both; arid, in an action for injuries to passenger, it is proper to refuse a oharge that one 01 the companies was not afleotlldbysuch prel:lumption. f. 'BAME-'-I1fllTatrliTtoNl:l. In an' action bya passenger for p8rl:lOnal injuries the court oharged that, unleSl:l an act at: omission· contributed to tlie. injury "directly or indirectly" it l:lhould IU)t , considereq. ,Held, that the use 01 tlle words "or indirectly" was harmless whell there was no proof of any fact that could be considered as a secondary or remote calise. ' ' 15. SAl\IE-DAlIUG1ts'-:-FuTtJREElI'lI'EOTS. . It was Rrpper that plaintift colild only recover for sucb future consequences as were reasonably oertain to ensue, and not for" merely possible or even probable future effects not now appareut," as the quoted words qualified the correct proposition expressed in the precedingclaullll, and were liable to mislead the jUrY. ,

011' NEGLIGENOE.

In En-or tothe Ch'cuit Court of the United States for the Western Di. vison of the Eastern District of Arkansas. Action by John H. Stoner against the Kansas City, Fort Scott & Memphis Railroad Company. There was a judgment for plaintiff, and defendant brings error.. Affimled. C. H. Trimqle, for plaintiff in error. J08e:ph W. Martin, for defendant in error. Befbte CALDWELL, Circuit Judge, and SHmAs and THAYER, District JudgeS. TRAYER, District Judge. , The defendant in error brought suit against the Little 'Rock & Memphis ,Railroad Company (hereafter called the "Little Rock Company") and tile Kansas City, Fort Scott & Memphis Railroa4 Company (hereaft!;lr called the "Kansas City Company") for persQnalinjuries sustained in consequence of a collision between trains of the respective companies at a crf>ssing of the two roads in the state of Arkansal!1 a few miles west .of MenlPhis,TellU. A westward-boun.d pasCompany wlls '. over the crossing senger train of, "the LitP.e . v.49F.no.3-14 .