receivers. The plaintiff recovered .judgment. andtbedefendants sued out this writ of error. Upon the trial the court gave the same instruction to the jury that was given in the case of thelle same plaintiffs in error against Lafayette, 49 Fed. Rep. 798. (dgcided at this term.} This was error. - The of the court below is reversed; and the caae remanded. With instrue-' tiona to grant a Dew trial. .
(Oircuit Ooort of Appeall, Eighth 0IirCUit. FebrUary U,l899.)
Plaintift took passage on defendants' freight train, which, when it reached his .tation, halted in sucli a position that the caboose in which he was riding wasqllite a distance from the station. He had alighted, or was in the act of alighting,when the .brakeman told him not to get oif, for, after the freight was unloaded, the would be moved so as to bring the caboose near the platform. The train, instead of slowing up as the caboose neared the platform, incre&l!ed its speed, and plaintiif, '. acting under the advice of the brakeman, jumped oif, and was injnred. Held, that defendants were estopped by the act of their servant from claiming that plaintiff was in fault in not leaving the tfain when it first stopped, or that its contract of carriage was fUlly performed at such time; that defendants could not avail themselves of their custom as to the stoppage of freight trains, nor of the rule'that passengers on freight trains 88sumeincreaaed risks; and thatplaintiifwas entitled to recover if, in jumping off the train, he acted as a prudent man would have acted in thecireumstaricell. . Contributory negligence is a dllfense which.will not avalldefendants, unless susbya preponderance of the evidence. In an action for personal injuries caused by defendants' negligence, where it ap.. pears that plaintiif has not fully gained the use of the injured member, damages may be given for future loss. .
. ' NEGLIGBNCE.
CARRIERB-INlUBY TO PASSBNGERS-MOVING TRAIN.
Error to the United States Court in the Indian Territory. Action by William J. Wallace against George A. Eddy and H. C. Cross, flsreceivers of Missouri, Kansas & Texas Railway, for personal injuries. Verdict and judgment for plaintiff. Defendants bring error. Affirmed. Clifford L. Jackson, for plaintiffs'in error. W. L. Hutchings and Sandels cfc Hill,for defendant in error. Before CALDWELL, Circuit Judge, and SHrnAS and- THAYER, District JUdges. SHIRAS, District Judge. The plaintiffs in error are the receivers having charge of the Missouri, Kansas & Texas Railway, and operating the trains thereon, under the orders of the United States circuit court for the district or Kansas. The defendant in error, on the 7th day of May, 1890, became a passenger on a freight train operated by the receivers, for the purpose of going from Kiowa to Stringtown station, in the India.n Territory. The train contained many cars, and, when it reached the station last named, it was halted in such a position that the caboose in which the defendant in error was seated was quite a distance ftom the v.49F.no.l0-51
statiGD: '.tWbentbe traiubalted, the defendanlt'in error went to theenlFtif1fieccarI'Withthre&'grip-eaoksj for the . p urposeof leaving the: steppi,l,1g, ,on the ground, tram told h'm,:po,t. to. get off; .,that w0t¥dpe there was some local freIgnt to be unloaded i moved lower down,-meaning by this that the caboose would be brought near to the station platform. Thereupon the defendant in error resumed his position on the steps of the caboose, with his luggage, awaiting the movement of the train. After some minutes' delay, the train was put in motion, and,l;l.S. Uw to platform, instead of slowing up, the speed waidncreasedi'noticing which, the defendant in error asked a trai,n had gone, and "Yes, we are gone, but we are not running very fast. You can get off. I will defendant in error jumped from throw tbe dowu"ali<'lillJured, his arm wrist .To recover damages for the injuries error tbis action in the United! Stateseouttfol'>tq)' IndillD Territory, and;\lp0D a trial ..before a jury, for n,250j bejngentered therefol',tberedllivers'bringthe, case to this court, the assignment of errorseti,J;Dtac.:mg 32 speciflcatioh$, " . 'f We shllll':potattemrtto,considereach specificati<m separately, but con'flne'the opiniorl to the'few general which are deof the parties, The errors,assigned,. based upon. thlJ cisive of the forin of'th13: stittimotls and thesufficJ,e!)cy of the se.rnce thereof, call only for the remark that these points have' already been 'ruled .upon by this contention Railroad (l,o··v. Jamea, 48 Rep, 148; Eddy v. Lafayette, .49 1l'ed.ll.ep.798, (opmion filed at present term.) The fourth'llod fifth ,assignments :of ertor are based upon the refusal of the trial· to permit the introduction· of evidence tending to show that it and,inaccordance with the rules of the company, to stop 10cll.Hreighttrainsat of the station grounds as would be most convenient for loading or unloading freight, and sengers thereon were expected .to leave.Buch trains at such places as they might be sto'li>ped ,with.·rmerence to the convenient dispatch of the .husiness.oftheoompllJ1y> Under some aspectswhioh. the case might have assumed, this evidence WOl:lld have been admisaiblei but upon the issues that were in fact presented by the testimony. and upon which the case 'Wlent tothejuf,y,ltbesanileJwas,immMerial. If theclalm had been made that the . had· beencolXlpelled to get . off" the . cars at an unfit place"or at 'apointotberthantlie platform, and· had suffered injury thereby, then 'it. might h,a.v6;beetLpettinent to prove the general rule and custom. of the cotnpany i9- .tblll parti¢tllar named. It is true that the pedoes charge, among other matters, that tbetrain was improperly and handled, in that. it was not ha.ltedatjor near thestatiOD platform; but in submitting the case to the jury the liabillty of the defendants was not made to depend in any degree upon the question of
the place tbe Was halted, and:, as the evidence introdiiced did not present this aS,an issue in the did not err, in: the rdling complained of: , , ' " ,,' ," '" It is also assigned as error that the court refused to give several instructions requested upon 'behalf 'of the reCeivers, the purptJrt of wHich may be fairly understood from the two requests now cited, to-wit: .. The court Jury that'ityou find that plaintiff entered defendants' local frl'ight train on the day inqlle8tlon at the station of Kiowa. for the purpose of taking passage to the 'station/of Stringtown, as a passenger upon said train, and that said train .was stopped by defendants' agents lIud' at the station of Stringtown ;sul)icient length of time to enable plai,l. till alight and that such stoppage of ,said train was made at a pliWe"nd in a man'ner customary.in the '!Danagt'ment and operation of similar freight trains upon dt'fendants' said line of railway, and that plaintift availed 'himself of said opportunity to so alight from said train, and did ,aliglit therefrom, thl'n you wlll further flndthat defendants fully performed tlltlir duty to plaintiff in affording him an opportunity to leave said tl'ain, and that plaintiff, on so alighting from said train, to be a passenger upon said train." , .. The court instructs the jury that if you find that plaintiff upo# defendants' local freight train on the day in question at the station of Kiowa, for the purpose of taking passa/le to the station of I;tringtown, as a passenger upon said train, and that said train was stopped by defendants' agents and servants at the station of Stringtown sufficient Jength of time to enable plaintiff to safely alight therefrom, and that such stoppage of said train was at a place and in a manner customary to the managl'ment and operation of similar freighttrnins upon defendants' said line of railway, and that plaintiff availed himself of said opportunity to eo alight from said train, and did alight therefrom, then you wUl furtber flndthat del't'ndanls fully performed their duty to plaintilf in affording him an opportunity to leave said train, and that plaintiff, upon so from said train, ceafled to be a passt'nger on said train; and if you further find that plaintiff, believing that he could save himself the trouble of walking from where the car in which he had been riding had been stopped to the defendants' depot or said station. of Stringtown, and for that purpose got backu pon said car with II view of getting off as the same passed by said depot, thaUhen plaintiffwlls not a passenger IIpon said train, and was not entitled to ba treated as 1\ passenger by defendants' servants in charge of said train." As already stated, the undisputed evidence showed that, when the train halted at Stringtown, the defendant in error was in the act of leaving the caboose, although he would have been required to walk a long he had with him before reaching the station distance with the platform, when the brakeman told bim that they had local freight tounload, and that the train would btfmoved 80 as to the caboose near to the platform. The passenger had 1\ right to rely upon the information thus given him, and if, disregarding the same, he had gotten off the caboose at the place it then stood, and had sued the company for breach of contract, in that the company had not conveyed him to the station proper, but had required him to alight at an inconvenient and possibly danfl;erous place, he would have been defeated in the action upon proof of the fact that the brakeman told him not to get off at that place, and that the train would be moved up to the station proper. The evidence
the passenger wontd. have left the caboose at the where itpalted. regardless of the inconvenience thereby caused hIm, had it not been that the company, through its agent, notipoint, and fied him. tbaphe, train would be moved to a more that such movement before alighting from the car. ;circumstances, company is estopped from claimillg that thepaasenger'.w8.$ in faUlt in ,not leaving the train when it halted with the capOose,a, !,qJlg, dist!\nce from the pllLtform, and it is also estopped from that its contract of safe carriage had been Jully performed when the train bad stopped' long enough to allow the passenger to leave the car·. The court, therefore, was clearly right in refusing to give the instructions above quoted and others of the same import; for they wholly ignore the fact that 'of the passenger in continuing on the ca,!:>oose due to the given him by the agent of' the company. It is further claimed, that· the court erred in charging" that a common carrier admitting passengers to a freight train incurs the same liability to transfer them safely as if on a passenger train." And in refusing, at the reqilest of the company, to instruct "that a passengertaking a freight train takesit.With the increase(l ril:lks and diminution of comfort incifor such a dent tb,ereto,and, if it is managed with the care train, it is all those who embark upon ·it have a right to demand. The passenger can only expeot such security as the mode of conveyance affords." to imagine or silggest cases in which the facts would ,8uchastci make the request above quoted entirely proper, and also to requiJ'e a more full statement of the abstract rule of law given by the court in Hs cb,arge; but there was nothing developed tn the evidence in this case,thttt called upon the court to. instruct the jury in regard to any increased risks or discomforts attendinl1;a passage in the caboose of a freight ti'ait1i as compared with a passage in a d'rawil'lg-room carfoi'm.; ing part ofa'passenger train. The injul'Y to the defendant in etror did npt grow out of riijk peculiar to a freignt train. it. might just as easily havepcc\lrred if tile trainhad been composed of passenger coaches, for the injury resulted from the passenger leaving. the, car when in motion, which may occur as readily with passenger as with freight trains. The to the jury upon two .propositiol1l!l: First. Was the carrier guilty. of causing the accident, in that the was induced to get-off the. train when the same was in motion? Second. Was the pasaenger with negligence in jumping from the steps of the caboose under the, circumstances developed in the evidence? Upon the first question ,the court charged, in substance, that if the the train .stopped at the station, was directed to remain InQyed to a more. convenient place,. which, howon the car\lntllJt ever,.was no,tdone, pq.t, the train being put in motion, the passenger was advised 'to. get off the moving trl:\in, and was aided in 80 doing 1:Iy the of the'defendants, and In, consequence thereof was inw01;lld copstitutt) negligence on part of the carrier, and jured, ,sllch 13ptitle the t9 a verdict, unless the latter had" by negligence OIl . his part, defeated his fight ofrecovery, CO\lJ:lsel for the receivers does
,EDDY fl. WALLACE.
not, in argument, press exceptions taken to this part of the charge; evidently recognizing the fact that, it could not be successfully claijned that it a proper performance of the oontract of safe transportawoD, theearrier the exercise of the highest degree of <lare llD,Q. skill,to mduce a passenger to forbear leaving the train by the representation tbaUhe car upon which he was riding would be stopped at the platform, and then, neglecting to stop the train, to induce the passenger to jump from the moving car, and thereby subject himself to the risks incident to such a mode of leaving the train. It cannot be successfully affirmed that a carrier of passengers exercises the high degree of care exacted of him, if he requires or induces passengers to leave the carupoFl 'J they are riding when the same is moving at a constantly increasing rateofspeed; and therefore it was not error for the court to charge the jury that, if they found the facts to be as stated, then the charge of against the defendants was made out, and the plaintiff was entitled to a verdict, unless it appeared that he had, by negligence, on bis part, contributed to the accident. . It is, however,urged as ground of error that the court did not properlyinstruct the jury upon the question of contributory negligence; the position of counsel, as stated in the brief, being as follows:
"The plaintiff should have acted as a prudent man wonld have acted, and cannot, after acting recklessly and in a foolhardy manner, recoverfor injuries sustaine4 by him while so acting. lithe plaintiff saw, or by ordinary care could have seen, that the defendants had 'in fact negligently exposed him to the risk of injury, he can nolonger rely on the instructions or advice of de.. fendants' agent, but must Use all the aduitionalprecautions on hispaI'twhich a person of ordinary prudence would use in view of the circumstances asthey are, and not as tbey ought to be."
Whether the court did not, in substance, instruct the jury in aCGor4 with the views of counsel .will be best. by quoting the Ian. guage of the charge upon this point, the same being .as follows: i
"The court instructs the jury that. though they may from tIll' evidence that the plaIntiff jumped from the train of the detendaI)ts while the same wa, in motion, and'defendants' servant or employe upon said train had advi)!ed Of instructed the plaintiff to so jump from said train, and that theplaintiJf was thereby injured and had his arm broken. yet if the jury should furthel" find that said train was moving at such a rapid speed that the danger to plaintiff in so jumping from such trai,n at such time was so great that a man of ordi. nary prudence would notbave so jumped, then the plaintiff should be con. sidered as guilty of contributory negligence, and the jury should find for the defendants. The court instructs the jury that if they should find from the evidence in this case that the plaintiff. being a passengel" on defendants' train, was instructed by defendants' trainmen to leave the train hi questimi when such train was moving at such a high rate of speed as would have prevented a man of ordinary prudence from acting uponsllch instruction, then your verdict will be for the defendants. The court instructs the jury that, a passenger on a railway train is Dot jnstifiedin yielding to the advice or instruction of those in charge of .the train to alight or jump from the train while the same is mOVing at a high rate of speed: that in such case the passenger must think befOl:e be acts, and is bound to think and act as a person of ordinary prudence would do un9.er the same circumstances; and if the jury be.
FEDERAL REPORTER \
Heve froIq that ·. in .jll.ID,pingfrot:9 a moving train at . .lh ....e . ian f: S,ttl. fI..8to.1N. 11 '.' ,.the. ,.ti.me ...r.eCei.Yed tb.e.'. . ,.0. . . e . . . '. ,com I.aill ed, Of. .. iQ. was ,to, apersoll of 'then WHll invited frOm8'&ld tram by tlefe11 dan'tS" sanante or agents."
Extende(loommentis nob :rieeded to demonstrata, not only that the iOfltructions:giveU :were iIi :hllrmony with the views of counsel as now statedih the brief; but tlJatth,ey clearly and fully stated 'the law, so that thejurypcould not.possibly,liave misunderstood their duty in the particular towhicbtheinstrudtions are applicable. The completeness of the charge iu this regard 'is::also a sufficient refutation of the errors based ralrequests of the receivers upon upon the refusal, of the court'to give sev this subject.. The iDstructionsgivenmet all thed-iff'erent phases of the evidence, and ,no additional light would have been given the jury by a repetition of the same thotlght'in the forms used in the requests preferred, Exception is also taken to the ruling that contributory negligence is a defense which will not avail a defendant unless sustaiined by a preponis the settled derance. of the evidence. That it is a matter of rule in the couris'·of the United States, and Why there must not be a preponderance, ofevidenqe to sustain it we are at a loss to. perceive. If . the argument of counsel was well founded, the rule would be that, if there was evidence ,tending to ahow contributoryll'egligence, a party injured could notrecover,which is certainly not tne' Inw in any forum. lIDless, upon ,entire evidence, the jury can fairly say that a plaintiff on his part, contdl;lllted to the injury complained of, has, by his right of recovery cannot be defeated on that ll;J'ound; and this is the equivalent of the prQposition thatthefactof contributory negligence must be established by &. preponderance of the evidence. .. . .. It is also said that it was error to refuse a request to the eff'ect that the jury could hot award damages to'plaintiff Cl for future loss that plainof his injury recei\l'ed by himself at the tiff'may sustain in time he alighted from the trllin in question." . In argument, it is said tAat there was. no evidence to sustain afi,nding that there would. be damand hence plaintiff was not entitled to an award thereage in the .for. If this \'\;aathe point sought to be covered by the request submitted, the language;used therein is but illy fitted to express the idea. If the request hadbeeri given, .t,be jury would probably have understood it to mean that they could not damages for future loss caused to plaintiff' by the injury received, but must confine the award to the damages received in 'he past, which would clearly, have been an erroneous statement ofthe law. The record shows that the defendant in error, when upon the stand asa witness, testified that at that time he had not regained the full u"eO'fhis arm; t})at he could not use it without causing pain; and that tl'te.fotatory lllo.tionof the arniwas impaired. There was evitending to prove a continuing the damage dence, caused therePYi.in the future was a proper element to be considered in the assessment :oHhe damages, and the court,: thetefore, did not err in