UNlON PAC. BY. CO. 11. JCNES.
843
It appeared, however,that the bank had -indorsed ,and parted with the notes before maturity.: We do not consider it important that the defendan,t's obligation is that of an indorser simply. ,·His undertaking waS complete and his tion absolute when he placed his name on tb.enote.NothinK remained for bim to do. His situation was /limilar to, that of a of a bill of exchange. The factthathe. migbtbe discharged by act oithe maker, or failure to,protestandgive,notice, is TPlil; supreme court of Pennsyhrania so decic:led under similar circumstances, 10 Arnold v. Nei88, 36 Leg, Int. 436. Whatever character, however, maybe ascribed to the defendant's obligation the receiver took· it suoh as it W8ll, subject to the right of;set-Off which the'defendll.ht then had. Judgment must, therefor the d.efendant,' provided for in case stated. · ' " " I
as
"
I,
, ,
i
UNION-PAC. ; CO'lIIrt 01
Ry. CO. Eight"
".JONEI. ,
Fe1>J'llal7, 1, 1892.)
01' ,A.<lriod....;r.. Where .. ,tbillt three again!lt it memo ,bars of family, for personal injuries receiVed in tbe derailing 0 a car, sbaU'beeonsoliilated, and tbllitf if a verdict i8 found there IIball be but one verdiCt, ,It the oourt, against ttl " ruled that,there should be a IIeparate verdict for plaintiff. .. B.un. . . ., ' . ' . In such a cue, there lII:DO error in requiring eeparate veJ:CUct& L
bl
ber, it:appeared that plaintiff was still.uffering to lOme extent, but would probably could be giviln for reaspuably certain future recover; ',,HeW, that sUffering'ahd disability, tliough then\ was no evidence .. to the lengthot time the laDle wolild probably contllRue. . " .,
III an action tried in March for personal injuriel lustalned the previous Septem.
Bl/FlI'ElWfG.
In Error, to the Circuit'Court ,of the United for the District of Colorado. Action by Gladys Jones against the Union Pacific Railway Company for personQl injuries. Verdict and judgment Jorplaintiff. Defendant brings error,·,Affirmed. , , c: John M.Th'I.U:8Um. Willard Teller, and H. M. OraJwod, for plaintif1 in ... . ., , /C.T. Wdls,R.T. McNeal, and Jo1il. G. Taylor, fo;, ,defendant in error. ; Before CirC9it Judge, and SHIRAS and'l'HAYEB, Distriot J'ldgell. :Distriot JQ.dge. ,',rhis 'action "8ll circuit of the, ofCplorad() fQr thepurp,ose of daUlages ,for per,sona! iJ;ljuries alleged to be '19 plirlntiffwhUe ',Vas a
lm
FEDERAL REPORTER ,
vol. 49.
passenger upon a. train upon the defendant's road, the carin which 'the plaintiff was riding, with her mother and sister, being derailed. The error mainly insisted upon by the plaintiff in error is that the trial court consolidated this cause, for the purposes of the trial, with two other cases pending against the company in behalf of the mother and sister of the plaintiff. The following extract from the bill of exceptions will show the action of the court in the particular complained of, to-wit: '''Be it rememberetl that on thi,lf27th day of June, 1891, this cause coming on for ft'illl, * ·. ... and it appearing that there was on the docket of said court at,that Mme, ready for trial,· and duly assigned for trial Ion that day, two oth'ersuits against the same defendant,' to-wit, one by Kath,erine Jones and one by W.inifred Jones, and it appeat:!ng,th"t the causes of action. arose o.ut of one,accident and onea,lIeg'ed negligence. on part of the fendant· hisisted 'that the three 'cases sho'uld be consolidatoo 'and tried as one cause, and that, if a verdict was found, there should be but one verdict and one judgment; but, the plaintiff objeetfrig, thereto; the courtuecided·tO,try all three of said causcs on one trial, but to take a verdict in each case and render judgment in each of the three causes, to which ruling the defendant, by its attorneys, then and there 1l'Xceptoo;" From this statement it is evident that two propositions were brought to the attention of the1:Ou\'tbelow: (1) Might I)ot the three cases, then pending, be consolidated and tried together? (2) Iftried together, in what the' ]uryretum their verdict? The 4i:'gumimt on bedirected point tlia:! the company was put toa great'disadvantage in being ci>nithree cases at pne tifne beforeoneJury. Granting8J.lJtbat is thus urged to be true, the difficulty is that the actioil of thectfutt tp be tried before the OIle jury, was brought about by the railway cOIllpariy itself, and it cannot be heard to say that there was error committed in this particular. . . It is Attempted to be maintained. in a.rgument that· the motion of the company for the consolidation of the causes for trial was so connected with itsspggestion that only one verdi.ct should be retUrned, and one judgment be entered, that the refusal of the court to direct a single verdict relieves the company from the responsibility of having insisted that the cansee should be tried as one. This contention is inadmissible. By the action of the railway company two questions were presentQd to the trial 'co\1tt for decision:. (1) Shall the causes be heard as one before the same j\iry ? (2) If so;:in what form shall the verdict be returned? The court granted the request of the company that the three cases should be tithe before the one jury, and ,thecotnpany is now estopped from questioning the correctness of a ruling which it asked to have 'and for which it is primarilyresp6nsible.. , Having granted the request' of the defendant that there should be but ont trial for· the three causes, the court then decided that the jury should be required' to return three verdicts, and. not one, as asked by defendant. It is open to':'ihe to aver that the court erred in it.$ deciSion on this question, but 'no argument is needed to show that the:courldecided correctly. If a single verdict had been returned, and a single judgment
UNION PAd.RY.eO. V.JONEl;
haa been basetl thereon. exceeding in amount $5,000, the defendant company would have secured the right of appeal to the. supreme court oithe United States, with all its attendant delays; but no other possible advantages could have aocrued to the defendant company. On the other hand, the rights of the plaintiffs in the several actions would have been seriously affected if the trial court had ordered the return of a single verdict, and had rendered a single judgment, because it would have been impossible to determine what part or proportion of the sum awarded as damages belonged to each of the several plaintiffs.. The cotjrtwas fore clearly right in directing that the jury should .return 'a verdict applicable to each case; thus showing the damages awarded to each one 0$ the several plaintiffs. The next error assigned that will be noticed is that wherein the fendantcompany complains that under the evidence in the case the jury should not have been allowed to consider the future suffering ofthe tiffs as an element of damage. The accident happened on the. 4th of: September, 1890, and the trial was begun on the 26th day of May, 1891, and the evidence showed that at the time of trial the plaintiff was atill suffering to some extentfr<im the injuries received; that the probabilities 'Were that she would ultimately recover, but no testimony was introduced directly upon the point of time when completerecQverymight be pected. In· the charge to the jury the court very clearly limited the right of recovery to such disabilities or injuries as were proven to be real, COI»plete and entire; and thereupon the bill of exceptions shows tho.tth6 following 'proceedings took place: , ."PI(l"inWl's Oounsel. Inoticedtbe court directs the attention of the jury to the fact of the disabilities, but said nothing-oHheir suffering. I apprehend these parties are entitled to compensation for,suffering. I :. "The Court. Yes; suffering, it is true, is a. proper element for , t i o n . ! . c. Defe1j,dan. t's OounseZ. That cannot go beyo?d tbe present time, under this evidence.;rhey cannot allow on account of tbe future'suffering. . ' , "The CQU1't. I am not able to say that, gentlemen. It waR said theselltdies would recover. The time in which they may recover was not stated. Physicians'expressed no opinion upon that. Probably they ought tobave been asked by counsel their opinioIl on that subject, but it was not donel all<l., .in the absence of such testimony,yo\l are at liberty togo upon your own judg'men t in respect to that matter. The plaintiffs Can have no right of,actiop hereafter for any part of the disability, and you can include in your verdict the disability which may continue from this time onward, in so far as you may believe it may continue, if you find for them." To this instruction exception was taken, and it is now argued that it was error to permit the jury to determine whether there was a probability of future disability or suffering, and award damages therefor. As already stated, the evidence showed that the disabilities caused by the accident had lasted up to the date of trial; and, still existing, it was the necessary inference that they would' continue, with the attendant suffering, for some time in the future; and for such future disability and suffering the plaintiff was entitled to recover. The objection made by
nDERAL REPORTER,
defendant is that it was incumbent upon the plaintiff to have introduced evidence proving the length of time the disability and suffering would continue. If by this is meant ,that the plaintiff was bound:to $ubmit in evidence the opinion of physicians upon this point, and that thejury would be bound to accept such opinions, we cannot agree to, the proposition. It would have been entirely proper for either or both parties to have iritroduced such expert testimony upon this point, but it was not done, and therefore the jury was rightly instructed that they must consider this matter of future disability, and decide it to the .best of their judgment, which was the equivalent of saying that they had before them no expert opinions, and must therefore decide it upon such facts as were in evidence. There was some evidence bearing upon the questioD'before the!jury,--such as the nature of the injuries received, their effect upon the physical condition ofthe plaintiff, and thelength of time that the: disabilities had alreadyconiinued; and, upon due of these:facts, it was the duty of the jury to determin.e whether there was a reasonable certainty of future disability and suffering, and, if so, to award compensation therefor.. Noexpert testimony could have shown just how long such disability would exist in the future, as the matter is one beyond absolute knowledge, and therefore experts could only have given their:opinions based upon the facts appearing in evidence; and, while 'such opinions might have aided thejury in reaching a conclusion upon the: questian, yet they were not indispensable to its consideration anddeterlDination by the jury. Exr.eption was also taken to the refusal of the court to give certain instructi,ons asked by defendant; but, with the exception of the fourth, which covers in another form just discussed, no special reliance is placed in the argument upon the rqfusal to give the'second and third requests of defendant, doubtless for the reason that the charge of the court fully covered the points made in these requests. In the structions given the jury, the trial court very carefully and fully guarded the interests of the defendant in all matters pertaining to the injuries complained of, and. to extent .of the recovery therefor; and the defendant is wholly without ground for just exception to any instruction, given 01' not given, upon these matters. 'FindiQg no error in the record, the judgment below is affirmed, at the cost 9f plaintiff in error.
GULF, O. &; S. F. R, CO. 'V. WASHINGTON.
347
GULF, C. & S. F. ,
t1. WASHINGTON. "
(Circuit Court of Appeals, Eighth Circuit. February 1, 1&92.
L
INDIAN TERRITORy-.TURISDICTION OF FEDERAL COURT-AMOUNT IN CONTROVERSY.'
In the I,ndian Territo,1'Y', a complaint a,llegin g simply that defendan,t, while per. atingits railway through plaintiff's pasture, negligently killed his stock, and that the stock was killed solely through defendant's inexcusable neglect. is suflicient to w,itbstBnd a general demurrer, since, under Mansf. Dig., Ark. S 5065, (in force ill the temtory,) a complaint will be treated as alleging every fe.ct which can be im· plied from its avermentB by the most liberal intendment. 8. Snm. In an ,action for the killing of Btock, where plaintUf re11ell upon the failure of the railroad company to fence ita track according to a contl'e.ct, that fact must be alleged in the complaint. 0,
t.
Under Act Congo March'l, 1889, § 1l,1JroVidingthat,the U*Jted States courts in the Indian Territory shall have jurisdiction in civil cases value of the thing in controversy or damages 9r money claimed shall amount to'$l00 or more," such courts have jurisdiction of an action for killing stock when the total Slnountclaime4 eX\l6eds $100, though the value of ee.ch,aniinal is less than that sum. COMPANIES-KILLING STOCK-PLEADING.
SAME-FENCING TRACK,
A contr!LCt by a railroOO company to fence itB track through certain lands imposes upon it the same dutiell and liabilitiell with respect to the killing of lltock all would be imposed by a statute requiring it to fence.
&. SAME-DuTY OP COMPANY.
In the Indian Territory, where neither the owners of animals nor railroad comlIanies are required to fence, it is the duty of engineers to use reasonable care to diBcover Btook upon the tre.cll:, and to avoid injUring them when discovered. .The.fe.ct that stock is in the Indian Territory in violation of law in no way affects the dtity of a railroad company to exercise care to avoid injuring them by the running of.i:ts trains.
.. SAMllI·
7.
SAME-COMPETENCY OJ' WITNBSS.
A witnesB familiar with a railroad tre.ck at a pIe.ce where cattle were killed is competent to testify as to the distance at whioh cattle on the traok could be seen by tbe engineer. Suoh testimony is not objectionable as being the statement of an opinion. It is competent to prOVl;l by oiroumstantial evidence that cattle found deOO along a railway track were killed by the company'B trains. In an e.ctlon againBt a railroad oompany for killing Btook It is within the disoretion of the court to refuse to require a separate 1lnding as to each animal BUed for.
S. 0.
SAME-CIRCUMSTANTIAL EvIDBNCB.
SAME-8PBCIAL FINDINGS.
10. IMPANBLING .TURy-iNDIAN TERRITORY.
lL 12.
ApPEAL-BILL OP EXCEPTIONS.
NEGLIGENOE-PLEADING.
18.
PLEADING-WAIVER.
n Error to the United States Court in the Indian Tenitory. Action jby J. R. Washington against the Gulf, Colorado & Santa Fe Railroad Company to recover damages for the killing of stock. Verdict And judgment for plaintiff. Defendant.brings error. Reversed.
