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
,the iristructicmin question. ,We have thlIscODsidered all the material pohits covered by the errors' aSsigned, and' do' not find therein any sufficient ground.for reversing the action of the . trial court. The judgment ii therefore at cost of plaintiffs in·
(cCrcuu Cou'l1 qf
L,RBClBITBRB 011' RAlLROADCOJIPANIEB-BUI'rB WITltOU'r Lurill OJ'
Congo Marob!:13,l887.'§8, (24Bt.p. 554,):authorizing auits agoin&t'recelv81'11 of railroads without sp'ecial leave of court, was. intended to place such receivers upon the same plane wIth the railroad compauies, both as respects their liability to be sued for acts done while operating railroads, and as respects the,mode of servIce of Co. v. S£.Lou'l8,..4.. & T. BII. Co., 40 Fed. Rep. 426, fOllowea. . , . " . ' " ' '. . ·, ' , OJ' PnOOllls8'ilf; b'DIAR TllIlUUTORY. .:" , For injuriell committed in the Indian Territory, receivers sued therein are properly served by delivering a copy of the summons to one of their station agents' of a ,therein under, laws, made to in the Indmn Terrttbry. such service is, sulliClentto confer defendant ill a 'railway coml,)anyor a foreign corpqration.
a.S.um-QBJECTIOl1B TO JURISDIClT!ON"",," WAIVER.
, Rei:le'ivers of a railmy, in an action against them in the Indian Territory for an injurY committed therein, sf\lrvlld ,If!th SUmIll.qDS by delivering a 'oopy to one of their ,station agents therein, by on the meritl! and Il:oing to trial after motion to quash the service ill ovel"ruled, .will not thereafter be permitted to question .the jurisdiction of the court. Harkne88 v. Hyde, 98 U. B.476. dis\inguished. In an aotion in the Indian TerritOry against the receivers of a raUroad to recover for hay destroyed by a lire set by defendants' locomotive where it appears that; one of plaintiffs a of the Creek. Nation, and that the hay was cut and gathered by her ou Creek lands, it will be presumed, in the absence' ofa coutrary showing, to have been lawfuUy harveat.ed. '
'" FIBEsBET BY LOC01l0TIVE8-I'REStJ¥PTIONS.
I., S.KB"",,"PABTIBS. ' .'" . . . . '," .,..' Bay destroyed by a 1Ire negligently set; bY defendauta' locomotive was hlU'o veated' by the occupant of the land under conttaet with another, whereby he agreed to 1ldvance the reqUisite funds, the former to receive one-third the proceed", !lew, that suoh persons could maintain a joint. action for the 1088. .
It Ie no ground of defenee.that the contract nnder which the haywaa harvested was invalid because mB\le· wj.Ut ,a married, woman, for, b,oth being. parties to the suit, all the necessary parties are before the court. ' In an. action to reooverfor,ha;Y. destroyed by lire set by defendants' looomotJve, a charge that in the matter of keepin/r theIr right of way free and olear of eom· bustiblematerials, alld in providing their locomotives withl!uitable defendants were ouly called npOJ/.,to exercise"reasonable care, skill, aud diligence, states the proper r u l e . ' , Negligence maYbelmputed to a railroad company it ,it allows combustible.DlateriaI to accumulate along its right of way in such ,quantity, at suchpiaces, and at such seasons 'as renders it. liable to become ignited and oause, damage to ad. jacent property.
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f.SAMilI--NEGLIGENOB OJ' DEFBl'tnA1iT&
, The fact that fire is cOmInunicatedbi a paSsing 10cODlotiveis prima faci6 evl- . denrs of negligence. . ' ,.
in the Vicinity, aud that the men so emplo,J'ed were keeping a constant lookout for
10. BAMB-N.GLlGBNCB OF
It appeared that the hay w.as burned in ricks while plalnwr. were making hay
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