11ll'Y t!) it. Yet there is an, obligation 4ue to others frQID'ralkoad 1CO rn panles, "nd thatls. to observe astrict wllile running their trains. tor stock: and age.nts, servants. andethRloyes are to,keep sucblookout. a!1d It is "Jau presumption that a wat'chfulageht' wIll see stock on the track; and the Jury will then determine,'ftom aU the circumstances adduced before you, Whether the agents, servants. ,or engineers used ordinarycare to prevent injury to the cattle." This instruction bears some to that given in the case of Railway 00. v. Washington, We condemned the form of the instruction in that case,' and it is much worse in this. 'Asgiven in this case, be likely to coIifuseand mislead the jury. They might very well infer, arId probably would infer, that the company owed the saolednty to owners of stock on the track that it owes to its passengers. We have stated the measure 9.£ the company's duty in respect of cattle on its track, and the rule is stated in the fiflh request of the plaintiff in error in this case, and which we have held it waS error not to give. The judgtrient is reversed, and the cause remanded, with directions to grant a new trial.
GULF, C. & S. F. R. Co.
(OtrcuU Oourt oj Appeals. Eighth Oircuit. February 8, 1899.)
In Error to the United States Court in the Indian Territory. Action by Henry Chi.lds against the Gulf, COlOrado & Santa Fe Railroad Company to recover fortbe killing of a horse. Verdict and jUdgment for lllainti1f. Defendant brings error. Reversed. B. D. Kenna, J. 'W. Te1"'lJ, andO. L. Jackson, for plaintiff In error. Before CALDWELL, Circuit Judge, and 8nmAS and TRAYER, District JUdges. CALDWELL. Circuit Judge. This action was commenced before a United States commissioner in the Indian Territory by Childs against the rail way company to recover damages for a horse allegEld to have been killed through the negligence of the company. There was a trial in the commissioner's court before a jury. and a verdict and judgment against the cOlllllany for elOlJ, from which judgment the company appealed tothe United States court, where the case was tried de novo before a jury, and there was a verdict and jUdgment In that court in favor of the plaintiff for $l:!7,50, and the company sued out this writ of error. The following are the errors assigned: "Dirst. The court erred in refusing to furnish counsel with a list of eighteen qualified and competent jurors, as required by defendant's attorneys, from which to make the peremptory challenges. Second. The conrt erred in permitting plaintiff, Childs. as a witness in IllS own bebalf, to testify that he could seetwQ or three hundred yards either way from where the horse in controversy was found dead. Third. The court erred in allowing the witness Loftus to testify that hecould see twoor thl'eehundred yards either way from where the horse in controversy was found dead. Bou1'th. The courterl'ed in allowing tbe witness Robinson to testify to the value of, the horse. Fifth.
GUUO, C. " S; F. B. 00. tI. MARTIN.
The court erred In declining to instruct the jury to return a verdict in favor of defendant, as was requested by defendant at the close of the testimony. Sixth. Said court erred in refusing to charge the jury in writing, and before the argument of counsel, as to the law in this case" Seventh., The court erred in charging the jury as follows: ·The engineer should be for stock when running his train, and should use due care and vIgIlance 10 keeping such lookout.'" , The first assignment is well taken, and for that error the case must be re· versed. The second, third, and fourth assignments are frivolous. As the case must go back for a new trial" we refrain from expressing any opinion on the question of the sufficiency of the evidence to support the verdict of the jury. It was not error for the court to refuse to put its charge in chief to the jury in writing. Railway Co. v. Oampbell, 49 Fed. Rep. 854. (at the present term.) The cOllrt did not err in giving the instructions set out in the seventh assignment. Railway Co. v. Washington, 49 Fed. Rep. 347, (at tbepresenf term.) The judgment is reversed, and the cause remanded, with directions to grant a new trial.
GULF. C. & S. F. R. Co. 'D. MARTIN.
(Circui' Court of ..a.ppeaZ8, Eighth. (;trcu:£t. February 8, 1899.)
In Error:tvthe United States Court!n tbelndlan Territory. Action. by 1'. A. Martin against the Gulf, Colorado & Santa Fe Railro;ld Company to recover for the killing of st.ock. Verdict and judgment for plaintiif. Defendant brings error. Rt'versed. E. D. Kenna, J. W. TerrtI, and O. L. Jack8on, for plaintiif in error. Before CALDWELL, Circuit Judge. and SHIRAS and THAYER, District JUdges. CALDWELL, Circuit Judge. This action was commenced before a United States commissioner in the Indian Territory by Martin against the railway company to recover damages for a sorrel mare alleged to have been killed through the negligence olthe company. The plaintiff below recovered judg. ment before the commissioner for $75, from which jUdgment the company appealed to the United States court. where the case was tried de novo before a jury, and there was 8 verdict and judgment In that court In favor of the plaintiff for $75, and the company sued out this writ of error. Every error assi/;tned has been decided In the cases of this plaintiff in error against Washington. the Same against Campbell, and the same against Ellidge, in which the opinions were tiled at this term. Reference is made to the opinions in those cases. It is needless to go over the ground again. The only error in this case was in refusing the defendant's request for a panel of 18 jurors. For this error the jUdgment is reversed. and the cause remanded. with direo-tions to grant a new trial.