acres. .TherQC/lu difficulty in possession of an unoccupied'tnwt of land of such; di'il)ensions, I09at,ed: asJhis is; and we are not at liberty to il,llport into this,case other tracts that .may be involved iQ like controversy and embraced in complainant's gl'a,ntof 45,ooQ,000 of acres. .. . , It is furthet, argued, .in favor of the equitable jurisdiction claimed it wUlavoid a multiplicity of But it appears for this. that only two af the defendants are.inpossession, clairuingtitle and exwould certainly not require more ercising ownership as to eight lots. possession, and indeed the law than one suit to determine their right is well settled that, under the practice act adopted in Montana, the plaintiff in aniactioll in tbe nature,,()f t;ljectment may join any number of defeI)dl\nts :Without regard to the extent or charactflr of their posses. San Francisco v. H Cal. 461. :,It appears, therefore, thlltthe bill.does not present a case coming the equity jurisdiction oOha.cQurt. .' " The. decree ,of the circuit court is therefore
UNION PAO. ltV. CO.
(C£rcuit Court Qf Appeals, Ef,ghth Circuit. February 8, 1899.)
INJURY' TO, EMPLOYB-OPINION EVJDENpB..
. In an 'action for the death of plaintiff'. husband, a looomotive engineer. alleged to have been caused by the faulty construction of a 'pcrtion of defendant's railroad, an ,engineer, testifying for plaintiff as to the faulty condition, should not be allow,ed, on cross:elCamination, to state that the engineers on the road were all aware of such condition, it being a mere inference. Ordinary care In the construction of a railroad through a cut in a mountain side, which.was alleged to be faUlty in not providing. a culvert under the track to carry off the washings from a gully, cannot oe shown by the opinion of a witness that cut was construoted and the water run out of it exactly as others are ordinarily constructed on roads running throu'gh such places. In· introducing impeaching testimony, by .showing former oontradlotory statements, .itis within the discretion of the trial oourt to permit a leading question to be put to a witness.where that mode of interrogation is best calculated to elicit the truth.' . .'
... NEGLIGENCE-BuRDEN 011' PROOll'.
In an.actlon to recover for the death of plaintiff's husband, alleged to have been caused by defendant's negligence, a to charge that the burden is on plaintiff, in the. ;llrst instance, to show that 'plaintiff" was in the exercise of due care, being misleading In the use of the word, "plaintiff," is properly refused.
6. B.ulm-MISI.EAD'ING INSTRUCTIONS.
Plaintiff's intestate, an engineer in defendant's employ on a division of Its rallroad constructed along the foot of mountain ranges, was killed by the derailment of his engine by reason Of sand and gravel on the traCk, which. during a storm, had washed down from the mountain side, through a natural gulley. into the railroad cut, and, there being no oulvertfor its escape under the track, was deposited thereoa
ONIO'N PAC. BY. CO.l1.O"BBIEN.
to the depth of stxtnohes. Held tllat, while intestlf,te assjlmed the inoreased hazard of his elllployment que to the fact that the road was oonstructed through a mountainous country, be did not assume l'iskscaused by faulty Qonlltruction and maintenance of the road.bed and track, even though liability to,accidents thereby was increased because the roa4 was ,built in pro;dmity to mountain ranges.
The question of negligence in not constructing a culvert in the place in question was one for the jury, to'bedetermined on the evidence 8S to the construction of the t\nd the formation of the land. Tuttw v. Railway Co., 7 Sup. C1;. Rep. 11tl6, u. B. 189, distinguisbed.
In Error to the Circuit Court of the United States for the District of Colorado.' Action by Nora O'Brien against the Union Pacific Railway Company, to recover for the death of plaintiff's husband, alleged to have been caused by defendant's negligence. Verdict and judgment for plaintiff. Defendant brings error. Affirmed. JohnM. Thur8tlm, Willard Teller, H. M. Orahood, and Edward B. Morgan, for plaintiff in error. H. E. Luth6, for defendant in error. Before CALDWELL, Circuit Judge, and BHrnAS and THAYER, District Judges. SHlRA.!!, District Judge. In September, 1890, John O'Brien, the husband of the defendant in error, was in the employ of the Union Pacifio Railway Company as a locomotive engineer, running an engine upon the South Park Division of the company's line. By a derailment of his en4 gine on the 4th day of September, 1890, the said John O'Brien was killed, a.nd the present action was brought by his wife to recover damages therefor. The evidence shows that the accident occurred about 1 o'clock in the morning. of day named, at a place known as "Platte Canyon," the deceased being in charge of an engine which was propelling a train of freight-cars, some 23 in number; that the line of railway is built along the South Platte river, and of necessity there are numerous cuts thereon, caused by the intersection of the line with the spurs projecting from the high lands along which the line is built; that the engine was derailed by reason of sand and gravel which had been washed upon the track to the depth ef some 6 inches, and to a width of about 15 feet; that this deposit of sand and was in a cut, the river bank of which was 6 or 8 feet high, the other bank being much higher, and sloping up the side of the hill or mountain; that on the hill-side of the cut there was a. gulley running back for some distance, which in times of rain would bring down sand and other material; that there was no opening or cuI. vert under the railway track, through which the water and the material brought down by it could escape; that there was along-side the road-bed a small gutter, but, if the water coming down was greater in quantity than this ditch or gutter would carry away, then the surplus would run over and upon the track and rails of the railway; that during the evening preceding the accident rain had fallen, and the water, rushing down the gully named, had carried the sand and gravel upon the track to the
extent already stated. The case was sent to the jury upon the issues or negligence on part of the company in not properly constructing the track, in that no outlet was provided for the water which would be liable to come down upon the track, and deposit thereon sand and other obstructiohs, and of contributory negligence on the part of the deceased; and, upon both issues the jury found in favor of the plaintiff, assessing the damages at $3,000, and, judgment being entered upon the verdict, the company brings the case to this court. 'The first error assigned is based:dpon the action ofothe court in susta!ning an objection to a question asked by the plaintiff in error in crossexamination of a witness, (William HaU,) who testified that he was a locomotive engineer, and was well acquainted with the line of railway upon which the-accident happened; that there are many cuts upon the line; that in August and September rains were usually frequent, and that in rainy weather, on account of the steepness of the mountains, more or less sand would be deposited on the track. Thereupon, counsel for the company asked the question, "Are the engineers all aware of that fact?" which was objected to, and the objection was sustained. It is perfectly clear, from the context, that the purpose of this question was to get the witness to testify to a matter purely of inference from the facts he had previously stated; that is, he had testified that; owing to the surroundings of the railway line, in rainy weather more or less sand would be deposited at various points along the line, and the question objected to waS asked with the view of having the witness draw the inference that .the frequency of the deposits would necessarily bring knowledge of the fact to all the engineers running on the line. The facts having been fully put in evidence, it was for the jury to determine whether the facts proven would justify inference of kIlOwiedge on part of all the engineers; and it was not error, therefore, to sustain the objection to the question proposed. The second error relied on arises on the refusal of the court to permit the same witness, after testifying to facts tending to show the need of a culvert at the cut, where the a.ccident happened, and that in his judgment a culvert would add to the safety of the road, to answer the question: said you thought the culvert would make it much safer; but is not that cut constructed there and the water run out of it exactly as others are ordinarily constructed on roads running through such places?" It is argued on behalf of plaintiff in error that if the company could show that this cut was constructed as cuts in similar places on roads running through a region of like character, it would be evidence tending to show that it had used ordinary care in the construction of this cut. If a bridge upon a line of railway breaks down, the. company may show that the bridge is of an improved make or pattern, and is in common use upon other lines of railway, as evidence tending to show that the company was not in fault in using that make of bridge. If the issue is whether the company uses proper precautions to prevent the escape of sparks from its locomotives, it may show that the same are equipped with the appliances in common use upon other roads. If the charge of
UNION PAC, RY. CO.
negligence is that the company did not use ties of sufficient size or of proper material, or used rails that were not of sufficient weight, then it might be competent to.show that upon other roads, carrying on the same kind of traffic, similar ties or rails were in common use, and were found to meet the demands put upon them. In all such cases the inquiry is whether the \lSe of a particular article is justified by the usage of other companies, and there is no danger of the jury being misled as to the exact nature or mode of construction of the article inquiren about. It cannot be claimed that cuts upon railways are made according to a certain pattern. The necessity of a culvert or water outlet in a cut depends upon the surroundings, in which no two are exactly alike. We know.from our common knowledge that in many cuts there are to be found culverts, and in others tbere are none. It would have been of no aid to the jury to have proved that in many cuts no culverts were used, without further showing that the surroundings thereof were substantially similar to that where the accident happened; and this would have required an examination into a number of collateral facts, that would have led away the jury from the issues on trial before them. It is said that the question as put to the witness met this difficulty, in that it asked whether the cut was not the same as the "cuts ordinarily constructed on roads running through such places.» This would necessitateone of two results. The witness must, in his own mind, determine whether the places referred to were in fact similar to the one where the accident happened, and the jury must be satisfied to take the opinion of the witness on the fact of the similarity of the respective cuts and their surroundings, or else the witness must describe in detail all the cuts he knew of "running through such places," which could only result in utterly befogging thejury; because, if that line of inquiry should be opened to the· one party, the other must be permitted to show the nature of the cuts in which culverts are found, and also 'to introduce evidence showing the actual nature and surroundings of the cuts which might be described by the witness. Under all the circumstances, and in view of the fact that the contention of the plaintiff was that the making of an outlet for the water was demanded iJ;l this particular cut, by reason of tbe track crossing a gulch or natural water-way, and not simply because it passed through a cut, which fact is not included in the question asked, and for the reason that if that line of inquiry was entered upon, there was danger of distracting the jury by leading them off upon collateral matters, we cannot hold that it was error to exclude the question. The third assignment of errors is that the court erred in permitting leading questions to be put to the witness O'Brien. The defendant had called as a witness George Warnick, who testified to matters tending to show that the deceased had not kept a vigilant watch for obstructions on the track, and on cross-examination he was asked whether, shortly after the accident, he did not, in reply to questions put to him by the witneSf! O'Brien, state that neither he nor the engineer were to blame for
tHe" tMpurpose of impeaching the Witness Warnick, O'Bridn Wag'c'lillegin rebuttal, and he was asked directly whether he had
pufcertain !questions, which were detailed to him, to' Warnick, and whether the'laffer had not answered theni' " Yes" and No;" When impeachingte'8tirbony ofthis ch/mcter is sought to be introduced, it is oithe trial court to permit a catagorical orleading be'put to' ,tbe where that mode of interrogation 'is best calcuhifed toe1icit'the truth. 1 GreenI.Ev. § 435',' ' It is assigned as error that the court refused to' give the instructions asked by defendant, which were four hi number, and read as follows: ' liThe cciurl;', '111 asked to instruct the jury that the burden Of proof is upon the plaintllT,'to!show that the accident occurred by reason of the negligence of the deft'ndantl,'aod that :the plaintiff was in the exercise of due care at the time of tlleacQiqept. and ,that due, care insllch a case reql1tred of the deceased that he be and watchful toavoid such uanger liS his expl:'rience of the road musth,ily,e made him aware he must expect in suchplact's as the place where the itCC)'del'Jt occurred, and under the circumstances detailed by the witnesses; to;.wit, at a time when heavy rains had been met With, and that there has been'olTered no evidence whatever upon that puint by the plaintilT, not even ,,:reputation for care, but there has been evidence offeJ'ed by the defendanttbMtMwas not in the exercise of due care; nor has.there been any evidence ,as to Whether, if the sand had been discovered at the tim,e it might have been' discovered, be could or could not have applied the air-brake in time to pt6ventthe accident." "The court Is' asked to' instruct the jurY' that a party taking employment as an engineer in running a'iocomotive assumes the risks that are incident to the employment,: and to the running of locomotives over tberoads operated by his employe!,; and if the jury believe that the countrythrough which this road ran and its,location was such that sand was frequently l1eposited on the trllock, then thifdeposit of sll.nd on the track when heavy rains occurred must be taken as one of the Qrdinary risks of his employment, and the duty of the engineer WIlS tO"hl:l ;vigilant ill avoiding it; and, if the jury believe that the lack of such vlgilanctl on "the part of the dectlased contrillUted to the accident, then the plaintiff cannot recover." "The courtls asked to instruct the jury that the duty tltat an employer owes to the is to exercise ordinary care in providing the employe a safe place in', which to work; and what is ordinary care is such care as men of ol'dinaryprudence use in similar circulDstances in the Same employ, ment." "The court Is asked to instruct the jury that there is no evidence to show that the cOllstruction 'of a culvert at the place where the accident happened would have avoiqed, or would probably have avoided, the ,accident." The first instruction is faulty, in that it declares that the burden was on the plaintiff in tliefirst instance to show that the "plaintiff" was in the exercise of due care at the time of the accident. It is said that the use of the word "plaintiff" was evidently a clerical error, and that it would be readily'perceived that it was intended to charge that it must be shown that the deceased wits free from negligence; but, if the charge had been given as asked; it might have misled the jury. As framed, it does not state the law correctly, and therefore it cannot be successfuJIy
UNION .PAC. RY. CO. V. O'BRIEN.
mainfainedtbat it was error to refuse it,especially in view or the facli that the court did instruct the jury carefully and fully upon the question of negligence on the part of tpe deceased. .. It is claimed on behalf of plaintiff in error. that the second instruction .askedbythe company presents the rule that an employe assumes the ordinary risks of his emploYment, and cannot recover for an injury suIting' and that the court did not present this question to the jury. It is doubtful whether the instruction was intended to to this rule, .for the concluding part thereof only asks .the court to rule to the jury that, if lack of vigiL:mce on the part of the deceased contributed to tbe accident, then the plaintiff could not recover, and it is encourt understood the instruction to be aptirely probable that the plicable ooly, to the question of contributory negligence, which was fully covered by the charge of the court. If thepr!'lsent contention of couns!'llis .correct, then the in!'1truction, as 8!!ked.1 is open to the obje.ction that it confuses together two distinct propositions, tp-W;it, that relating to the risks assumed by an employe in enteljing a.giv!'lnservice, and that relating to the amount of vigilance that should be EIJl;ercised under given circumstances; a mode of asking instructions whlch.cannot be approved, as it is liable to mislead the court.andto confuse the jury. Granting, however, to the plaintiff in error the fit of the exception now urp;ed, it does not appear that it was error torefuse the instruction under the circumstances of this case. It is doubtless true, as· urged in argument, that persons em ployed upon lines of rnHway which are constructed at the foot of mountain ranges are necessarily subjeoted to greater dangers than those employed upon railways passing through a country, for the reason that there is greater liability to obstructions being thrown upon the track in the one case than in the other; and it is unquestionably true that one who engages as an engineer or oth!'lr train-hand npon a line running at the foot of a mountain range assumes the increased risk due to this fact. In neither case, however, does.the employe assume the risks and dangers that are caused by negligence on part of the railway company. It is the duty of the company to use all such reasonable care, as a corporation managed ,by prudent men should use, in constructing and maintaining a track and road-bed in such a condition as not to subject its employes to unnecessary risks and dangers. What will be required of a company in the exercise of ordinary care in constructing its track .will vary with circumstances., A mode of construction which might be entirely safe in case of a line running through a level country might be wholly unsafe i.fillppliedto a line running along a mountain range. The employe has aright to expect that a company operating a line, which by reason of its location is subject to certain hazards, will construct the road-bed and ,track withd;ue reference to such hazards. If the company has used due ',care in the construction of its line, having regard to its surroundings, and yet, by reason of its proximity to mountains, rivers, or other natul'a! objects, there .exist dangers from land-slides or overflows, or other like C8L'lualti,es, a person entering into service of the company assumes
risksCllused thereby, or, to state the proposition in another form, he assumeS the dangers incident to his employment upon a railway track properly and carefully constructed and maintained along a mountain range; but he'does not assume the risks caused by the faulty construction and maintenance of a road-bed and track, even though the liability to acof the imperfect road-bed and track, may be increased because the same is built in proximity to a mountain range. In the case at bar the deceased, when he entered the employ of the company, had the right to assume that the road-bed and track which he was expected to use had been constructed properly, and with ordinary care, having due regard to the location of the track and its surroundings; and if such a road-bed and track, so constructed and maintained, were in fact furnished him,tben he assumed the risks and dangers due to the fact that the line ran along the foothills, and would, of necessity, be subject to the possibility of obstructions being cast upon the track from the adjacent mountains. The plaintiff's case, however, is not based upon the fact that the proximity of the railway line to the highlands caused danger to the employes, but upon the allegation that the company, in constructing its road-bed what nature had marked 'out as a water-way,-to-wit, the gulch upon the hill-side,-did not use due care, and was negligent in that no 'outlet for the water, which the company was bound to know would in the rainy seasons come down the gulch, bearing with it sand, gravel, and other like material. The question is not other nor different from that which arises in all cases where a railway is constructed over a natural water-way, whether in a prairie or mountainous country.. The duty is upon the company to use due care to so construct its road-bed the place where it crosses the water-way that it may be reasonably safe for use; and if to that end a culvert or other means of escape for the water is necessary, and none is provided, but, on the contrary, the road-bed is built solidly across the water-way, thus subjecting the track to the liability of being covered with sand and gravel, then a jury would be justified in finding that the road-bed was improperly built, thereby sustaining the charge of negligence against the company. If the evidence in' this case had shown that, owing to heavy rains, or for any reason, sand, rock, or other obstructions had been washed down the mountain side, and upon the track at a place where the company had no special reason to anticipate such an event, then there would be force in the position that the deceased assumed risks of that character; but the facts developed in the evidence did not present the case in that light. The evidence clearly shows that the sand and gra.vel on the track were washed down the gulch or natural water-way, and the theory of plaintiff's case is that the company was negligent in building a solid road-bed across a natural water-way, and in failing to provide any means for the escape of the water that must be expected to flow down the gulch. Upon t.his issue the case was sent to the jury, and the giving of the struction asked by defendant would not have aided them in reaching a conclusion thereon. Hence, in any view that may be taken of the extent and purpose of this; instruction, it was not error to refuse'it.
UNION PAC. RY. CO. ".:O'BRIEN.
The third instruction was fully covered in the charge given, and the general rule of law in the court was not called upon to repeat the , form adopted by counsel. The fourth instruction was properly refused, because there was evidence before the jury tending to show that if a culvert or other outlet for the water coming down the gulch at the place of the accident had been provided, the track would not have become covered with sand and gravel. In order' that it may clearly appear that, as already said, it was not error to refuse the several instructions&sked by the defendant, becauSe the same, in so far as they are correct statements of the law, are braced in the charge of the court, it may be advisable to quote at length therefrom. It was stated to the jury by the court that.. The rules to be applied indetermin ing this controversy, gentlemen, are applicable to 11.11 cases in wbich a person in service rna)' have a right of action against his employer. The circumstancethattbe defendant is a railroad company does not distinguish the case from others of the same class. III general, a person who receives lin injury while in the service of another has no right of action his employer for such injury. It is only when the person employing him hasomittecl someduty-faiJedin sometllingenjoined upon him by the law-that any such right arises. And this right arises only when the person injured is in the discharge of his U uty to the extent that it may be said that lie is free from fault. The persoil injured must be without fault; and the employer must be in fault, before/my right of action can exist. So in all these cases t1Jere is a double aspect. It is first to be ascertained whether the person injm:ed was in any way negligent; and, secondly, whether the employer was negligent in a manner which caused the injury. These features must co-exist; the person employed must be without fault, the other must be in fault. If th'eemployerhad been in fault, and the other bas been negligent also, there is no fight of action. . "(2) And ,in this instance, upon the circumstance developed by tbe" evidence, it is especially necessary to consider first, and decide, whether this man who lost his life waR in fault at the time ot tbe accident. There is some evidence tending to SIIOW that storms inthe region Of'coulltry traversed by tbis railroad are of frequent occurrence in the fall season of the year, and with the effect often to bring down upon the ,track considerable quantities of sand and gra vel; so that, with a storm prevaillng at and before the time of the accident, the circumstances were sneh as to make it reasonable to expect that some such thing would occur as did in fact occur, in respect to washing down gravel and,. sand upon the track; and this made it the duty of the engineer to look outror these things very carefully. It was necessary for him. under all the circumstancl's, to be especially upon his guard in order to avoid injury to his train and to himself. And there is evidence tending to show that he was not in that attitude at the time of the accident. Yon remember that the fireman who was with him upon the engine states that at tbe time of the accident he was of the impression that the engineer was asleep. He cannot state this with certai nty, only from the position in which be sat, and from hill attitude at tbe time. Now, if that be true, there can be no right of action in the plaintiff here for his death, because all the circumstances reqUired him to bevigilanta'nd attentive to his duties in the place in which he was put. If he had been awake. and looking out for obstructions upon the track, it might be that he wOllld have seen this obstruction in time to stop, or at any til.te to check the train. so tbat the engine would not have been overturned. and thus the injury would not have resulted."
The court then instructed the jury that the plaintiff.could n.ot recoVer on the ground that the seQtionmen had not properlywlI.tched the track for obstructions, which was one of the matters complainedpf,forthe,rea· SOD ,that sncb negligence,: if it would be due to the act of a fel· for which the ,compaDyw.ould not be liable, and then gave low... the following the giving which iaaseigned as error: "(5); ITherai&,1howaver, another .matter which stands in: a different atti· tude, and that is as to the construction of the road at the place where the acehowthat at, that place, was bllilt across of gulch o.r, draw, and.;if.1 under,stand the, testimony well, a1)<jut,upon the same le\relMthe mouth .of the draw, and that the by the'dra'wbeloWthetrack;and'1owards the river, on the lIide coming' thiswaYI' 'wall clused by the earth taken from the cut, or perhaps by thesandwhich'h8<l washeddo,wn; and it would seem frOID all the <lil.'cIID)stanues detailed in Elvidencethat.. it VVq!lld bave been practicable to make a culvert under the track at that open tbe cnannel towards;<tlle dver,thrQ\lgh !Which the Band ,might have washed out towards th,e and in, that manner obstructionmig/lt have been a voided aUhat placel perhaps not as rullapd complete on this point as it might haVe been made, but I from all that is stated before you. it fairly opentotltis c;onlltructlon. Of course, thatwouhl depend someWhat upon the size ,of the opening in the culvert or channel underneath the and upon the quantity 'ot Ban4 alld gravel coming down through the gulch; but, all the, cir,;umliltanceB, as well as you can understand them from the t8stlmonY"if,youareof the opinion that the track might hay-e been built in this way with ,reasonable expense, and so.as to a void the possi. bility of sand coming upon the track and obstructing it, you are at liberty to say that the company waa negligent in feBpect to the manner of building the track at that pille!!. It seemf5 from testimony this track had been o\:). atructed Jl()t recall.jllst now how often before this time; so that ther!" was enough in the circumstances to call the attention of the company, to the fact ,that there wall from this source, "(6) 'It is tr,ue'that, in building its road, and as a matter of duty towards persolls in its the company; is only required to exercise ordinary dUb care,-such,c/lreand diligE-,I).c!l8s men uSl1a)lybestowupon business of the like nature; so that i;t is not. the highest degree of diligence which you &l;eto.demand of the cOmpany in thiareapect, but only such as men ordinarily such concel"ns.'Xlum the queBtion will be in :your minds, whether lIhe road at ,this place was Puilt· ordinary care an<idiligence, with a view to the protection of the,)ives of persons in the sel'vlce of the company. 'fhe rule is different when it co.mes to the of a passenger. A passenger who ilil injured may compl!\in of almost allYthing as a defect in the road and its structure, showing negligence on the part of the company. But in respect to !,ersons who ari'l employed by the, company, the rule is somewhat differl;lnt; that is to say, there is degree of care and diligence required by the company in respect to the servants of the company than is required in reapE-ct to pel'sonstraveling on the road in of passengers. So, then, gen, tlemen, if you are ableto,relieve tJIedooeased. in respect to saying that he \Vas In the fulfillment of. his duty, well the duty which was required ofhiro Oil the oCilcasion, and,tbat .the company Is negligent in respect' manner may be able to lind a verdict for plaintiff; otherwiae fqr tne 4:lefenda!1t." "(7) M1'. Willard Teller. I would like to ask specially referring to the quee. tioll of this culvljrt. 1J \YQIM like to lla\'6 the court cJIarge tbe jury that there ill no evidence except that of Mr. :ijallin respect to whether a culvert would
be safeI' or' not, and that is' an opinion of his, though t it would be salen is eVideD,ee,in respect to it.' " , , , "The ,Court. J believe: tl;J./&t is true, J: thinktl$$, be "is.the i)nly witness who testified in tbat way. , I think yoq can considel', the matter upon your own judgment andl-nowledge <>CIl\lCP ,.matters; is to say, having' regard to the tt'stimony beforeyoq'. the situation of the road. and the topography of the' ground,the gnlCh coming down in the way described by the witnesses. you,M,meo of some Ilnowlt'dge of affairs, may deterlnine in your own minds, quite independently of Mr., Hall's ttls,timony, whether it was practicable to wake aculverttperewith rea8UDable cost, which w.ould have the,effect toearryawlloY the sand and gravtll so it would not be an oilstru¢tiC?ll'; I beHave they to sOole rork Cl?,ming: down in thl:! sandi w!leU,cr it, would carry it a war so it would not be'.an'bbstructionupon the track." " , Exception is taken to the portions of the charge wherein it is said that the jury might exercise th'eir own' judgment and upon evidence adduced before them in regatd to the situation of the road, t46 topography of the ground, and the existence of the gulch, and determine therefrom not it to a culvert at a reasonable cost, whleh w6uld carrynway the sand a.nd gravel, and prevent the same from becoming an obstruction on the track. It does u()t appear that objection: was taken to this when it was introduced" and, if the jury could not properly cOnsider and weigh the same in reaching a conclusion upon the issue before them,. it was a useless waste of time to put it before them. Clearly, when the jury was called upon to detennirie whether a given part of the road was or was not properly built, it was necessary that they be informed by evidence of the mode in which the track was constructed, of the nature of the ground and its surroundings, in order to aid them in reaching a proper conclusion. If admissible upon the issue, then it would be impossible to prevent a jury frOID using their own judgment and knowledge in determine ing what conclusion should be drawn from· the evillence. The human mind is so constituted that, in considering and weighing different facts, and endeavoring to apply the same to the solution of a matter in dispute, the conclusion reached will be the result of the facts in evidence, viewed in the light cast tIl'areon by the judgment and knowledge belonging to the deciding mind. There' was nothing in the nature of the inquiry involved in the issue submitted tothe jury which took it out of the usual rule that the jury must decide the ultimate question in dispute. ., Counsel for plaintiff in error cite in argument the, decision of the supreme court in the case of 'Tuttle V. Railway Co., 122 U. 8.189,7 Sup. Rep. 1166, wherein it was sought to hold the company liable in damages for the dea.th of a switchman', who was crushed between two ears, the draw-heads of which passed or slipped by each other, which in turn was caused by the of the curve in the line of the railway at the point where the accident happened. The ground of negligence charged was that the curve was so sharp as to render the road unsafe, It was held that there was no rule of law restricting a railway company, so far as its duty to employes was involved, in the character
of. thE! curves put in use, and that engineering questions of this character could not be left to the varying and uncertain opinions of jUries. It may well be, whenItbetlomes necessary to build a line of railway throl'1gh a rough alid broken country, or to construct side tracks in the narrowJirtiita of a railway yard, that it J,llustbe left. to the engineer in .thereof, assuming that he is of cOlllpetentskill and acquire::nents, to define the curves that are called for by the exigenciesof the situation i and, theroa.dbeing builtin accordance with his directions,that anyone entering into the employ of the be held to h'aveassumed the to the sharpne,ssof the curves, the existetice.of which is, of ,opeD: tahis knowledge. This principle, llowev:w"cannot be carried to the extent claimed' in argument by counsel for plaintiff in error: ,..If it. was IlPplicable)? .the broad for it, the result would be that the well-esta:phshed rule that It IS the duty of the comuse due pare in the construction and maintenance of the aqd track, anliin die furnishing of proper machinery for the useofHs 'eipployes, wOl\ld be wholly abrogated. In one sense, it is a questiQn of engineering skill to. determine how a road-ped and. track shall constructed; anq, if the 'conclusion of the engineer in charge thereonsfinal, and cannot be challenged before a court and jury by 6newho has suffered injury by reason of defects in the road-bed and track, then it is useless to say that a railway company is pound .toexercise due carein the construction of its road-bed. for it could always be prepared to prove that the,road was built in accordance with the directions of between .the kind of knowledge called' int9 in deterinfping the sharpness of a curve that is needed in running a railway at a given point and that exercised in determining ,whether tne' exigencies of a given situation require that some escape or.ouUet should1:>e furnished for' water liable to come down a natural water-way, intersecting the line of railway, is so great that it renders, the rule applicable to the one case, inapplicable to the other. The trai'p'ing and knowledge of anengineer is not needed to enable one to understaild the action of water in rushing down a gully or similar water-way, nor to know if an obstruction like a solid railway road-bed is built acro,SS a. water-way· down which any considerable amount of water may be expected to pass, that, unless an outlet is given to it, it must of necessity collect against the' road-bed, and perchance overflow it. Such facts are matters of common knowledge, gathered from the experience and observation of every-day life, and hepcea jury is entirely compe.tent to pass upon an. issue involving considerations of that nature. In the instructions given tne jury the court very carefully presented the decisive involved in the issues, and correctly stated the law applicable The errors assigned are therefore overruled, and the judgment is affirmed" at cost of plaintiff in error.
(C£rcuf.t Court, D. Montana. February 25, 1892.)
MINING CI.AIM-NATlJRE OJ' ESTATB-DoWER.
A mining claim in the public domain, as defined by Rev. St. U. So' 52822, is BSUbjeqt'of dower, since the estate is one ,of inheritance, and the'owner bas a title of tbe highest kind.
B. SAME-PATENT-MERGER 011' CLAIM. , , ' When a person ill posSe!l!liOIl of B mining claim obtains a patent therefor, lifter posting notices, making proofs of work, and paying five dollars peraore"as by Rev. St. U. S. 5 the claim, as a separate estate; is merged In the full fee, ' silpple t i t l e . , 8. SAME-DoWER. ,.', . ' I When such a merger takes place, a right of dower in the subordinate estate Is ex. . tlnguished, if the owner thereof has filed no adverse claim in the register's against t4e application for a patent. . " ,
At Law. Action by Mary A. Black against the Elkhorn Mining pany,Limited, to recover dower in a mining lode. A complaint was overruled. , 47 :Ired. Rep. 600. The hearing is now l1POP a demurrer to new matter in the answer. Overruled. ' Word, Smitk &- Word, for plaintiff: Oullen, Sanders &- Shelton, for defendant.
KNOWLEs, District Judge. The plaintiff, Mary A. Black, this action to have dower assigned her in the A. M. Holter lode, in Elkhorn mining district, Jefferson county t Mont. The c 'l1plai'p't sets forth that L. M. Bhtck was the husband of plaintiff; that in his·life.. time he WllS seised of an estate of inheritance in the said A. M. Holter lode; that he conveyed the same to one Burton, and that by. conveyances the title possessed by him passed to defendant; that tiff did not join in this conveyance to BurtoD, and never at any linquished her dower in any way in said premises. The appears, is a corporation. It denies all these allegations of the plaint, and t4en sets up several averments of new matter a . , defense to the cause action set forth in the cumplaint. The plaintifffiled her demurrer to this new matter. I find myselfsoillewhat perplexed in considering the same. The first ground set forth in this new matter is to the effect that plaintiff ought not be endowed of the property described in the complaint, because L. M. Black, her was not at the time of his marriage with plaintiff, or at any time thereafter, seised of" said tenements, with the appurtenances whereofplain; tiff claims to be endowed." This seems something like the averment of a conclusion of law. The third averment of new matter for a defense is that the Elkhorn Mining Company, the grantor of defendant, being seised of the premises and possessed thereof, applied for a patent to said premises from the United States, and that plaintiff filed no adverse claim to this application, and that on the 19th day of November, 1889, the United S,tates issued a patent to said Elkhorn Mining Company for said land. Considering these two defenses together, and the arguments and