. n:pERAL REPORTER, vol. 50.
·!'The'court erred in o\terruling the "geheral demurrer of'the saId SOuthTelegraph &; Telephone Company to the original petition and cause Qf aetion of the said J.B. Robinson, as will appear from an inspection of the I\aidpetition, demun'er, and jUdgment of the court thereon." JohnW. Wray, for plaintiff in error. M·. L, Orawford, W. O. Davis, and J. L. Harris, for oefendant in error. Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.
. EOOCE, District Judge, (after stating the facts.) The question and the only question for review here is whether the plaintiff stated a cause qf action in his petition, and if the demurrer to the cause of action, as stated by the plaintiff in the court below, was properly overruled. In Rau1'Oad Co. v. Jones, 95 U. S. 439, it is said negligence is the failure to do what a reasonable and prudent person would ordinarily have done, under the circumstanceS of the situation, or doing what under the existing circumstances, would not have done. lt .seem too plain to require argument that the allegations of the petition show negligence on the part of the telephone company. Under the facts and circumstances stated the wire was an obstruction iipon the public Travelers were liable to collide with it, and iiljutiousconsequences to them would follow as the natural and probable *esultOf such contact. Article 622 of the Revised Civil Statutes of Texas
"Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers. abutments, wires, al)d .other fixtures along, upon, and across any of the public roads, streets, and: waters of the state. in such manner as not to incommode the pubUein the:use of such roads. streets, or waters." 1 The duty on the part of the telephone company was clear to prevent Its wire from becoming an obstruction on the highway. Under the circumstances shown the defendant in error might have been hurt by coming in contact with the wire of the telephone company, and injuries to the defendant in error might have resulted, independent of the fact that the wire at the time was loaded with a chargeof electric fluid from the cloudsal1d storm then prevailing. So that it. is difficult to see how this verdict CQuld be disturbed even if the contention of the plaintiff in error i.s correct, that the electricity with which the wire was charged at the time was the proximate and immediate cause of injury to the defendant in error, for which the telephone company cannot be held responsible. :Negligence is a mixed question of law and fact, and is a question for the jury, under proper instructions from the court. It is not clahnedhere that the court misdirected the jury in its charge on the r;lwofthe case, and the verdict is: . "We,thejury, find for the plaintiff ip. the $PDlof twenty-five hundred dollars." The jury found negligence qn.the part of the. telephone company, resulting in injuries to the deand for which they assess his damages at $2,500. It is nO,t ,spawn the jury found that the wire of the telephone company was charged with electricity at the time the defendant in error came in
SOUTHWESTERNlrEI.EGRAPH k!TELEPttbN'ECO. fl. ROBINSON.
contact with it, and that the electric fluid was the cause of the injury to the defendant in error,and so it is not clear that there was any error in the ruling of the court, even upon the theory of the case insisted upon by the plaintiff in error. No point is made on the question of contributory negligence, and the contention of the plaintiff in error seems to be that the petition states the cause of action to have been the injuries which resulted from the fact that the wire at the time of the contact ·with it by the defendant was charged with electric fluid, for the creation and existence of which the telephone company was in no sense responhowe\"er, must be held to know the ordinary operation sible. of the forces of nature, and to use proper means to avert danger. If the electric fluid with which the wire of the telephone company was charged at the time was an element or the main element in the production of the injuries totbe defendant in error, still it is clear that the displaced wire furnished the means of the communication of the dangerous force which resulted in the injury to the defendant in error. Science and common experience show that wires suspended in the atmosphere attract electricity in the time of storms, and when so suspended and insulated are dangerous to persons who may at such times be brought in contact with them, and the petition charges that, during electric or thunder storms, such wires ordinarily become heavily charged with electricity, of power sutlicient to cause death or great injury to those coming in contact with them; and whether this is so or not is a question of fact. To say that the agency of the telephone wire in the production of the injury was inferior to that of the electric current, which was the main cause, is not satisfactory. It is, in fact, to admit that the company's displaced wire furnished the means by which the dangp,rous force was communicated to and injured the defendant in error, True, it was a new force of power which intervened, with the production of which the telephone company had nothing to do, but upon this point, in Insurance Co. v. Tweed, 7 WalL 52, the court say: "If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune. the other must be considered as too remote. It The new force or power here would have been harmless but for the displaced wire and the fact that the wire took on a new force, with the <:reation of which the company was not responsible, yet it contributed no less directly to the injury on that account. In Gleeson v. Railroad Co., 140 U. S. 435,11 Stip. Ct. Rep. 859, the court held that a landslide in a railway cut caused by an ordinary fall of rain is not an act of God. which will exempt the railway company from liability to passengers for injurit,s caused thereby while being carried on the railway; andan page 441 (page 861,11 Sup. Ct. Rep.) of the opinion in that case the court, .quoting from an English case, say "that the plaintiff' was entitled to a verdict on the ground that, if a person maintains a lamp pr?jecting over a highway for his own purposes, it is his duty to maintain it so as not to be 'dangerous to persons passing by; and if it causes injuries, owing to a want of repair, it is no answer on his part that he had employed a <:ompetent man to Neg. pp. 346, 347. No
case is cited lilee the one at bar.ih:bt the principles upon which cases of ..aeter have. been decided sustain the verdict in this ease, and the judgment of the court is affirmed.
&: P. Rt.Co.
(Cl7'CUU Court of Appeal4t,
CIrcuit. May SO, 1899.)
LCoWTrNtfANCB-ABSENCB o. WrrnlsBs-DISORBTION O. CotlB'l'-ST.&T11 PUCflClll !lOT FOLLOWBD-RBV. ST. S 914.
A.contlnuanoe because of the ahsenoe of material witnesses rests within the discretion of the circuit court, without regard to the practice of the state courts notwithstanding the statute conforming the practice and prooedure of tbe circuit ClOurtll to that adopted In the courts of .record of the state,where such court Is beld. ,because the mode of summoning witnesses and taking testimony 1D the courtl ot the United 8tates is regUlated by statutes of the United States· In an action for personaUnjuries sustained at a railway orosslng, defendant alleged contributory oegligence on the pan of the plalntitf In failing to stop, look 11lldUsten for the approacl/.in/Ctraln. HeW, that plaintitf oould testify that several pellple, who were in the wagon with him at tbe time of the accident, dId not make any outcry Indicating that a train was approaching. Under section IlO of tbe charter of the oity of Ft. Wonh the oity councl1 il empowered "to direot the,use, and regUlate the speed of locoUloth'e enl!ines In said city. or to prevent or probibit the use or running of the same within the city." Jietd,.tbat the city council were authorized under this section to enact an ordlnanlle prohlbitln/f tbe running of an engine or car In said city without a bell atta"hed thereto bemg run" before startlDg, and all the time the lI&me should be in iWithinsuch oity.
AT R"';n,WAT CROSSING.
.. RAILROAD CoMPANIBS-MuNICIPAL REGULATIONS-RINGING BELL.
Error tQ the Circuit Court of the United States for the Northern District of Texas. Affirmed. lV. W. ·liilwe, R. S. Lovett, IIenry Finch, and Gwrge Thompson, for plaintiff in error.. J/, L. Cra1iford, for defendant in error. Before PARDEE, Circuit J uuge, and LUCKE and BRUCE, District Judges.
PARDEE, Circuit Jurlge. The defendant in error, B. F. Nelson, instituted 8 suit in the distri<;t court of Tarrant county, state of Texas, against the Texas & Pacific Hailway Company, to recover damages for personal injuries suffered by the saiJ Nelson in run over by one of the locomotives of the rail way company at a rail way crossing in the city of Ft. Worth. The railway company appeared in the state court, filed a demurrer and. ahswer to the 'petition, and thereupon, by a proper petition and boncls, removed the case into the circuit court of the United tltates for the northern district of Texas. After tr'1nsuript filed in the circuit court, the ,railway cOIl1I>noy filed its first amended original answer, wherein it deiDurred to the sufficiency of, the plaintiff's petition, then excepted to sutIiciency thereof, and for special answer said: "That. if plaintiff rerl'ivl'd any oftheInJuries alleged. same were caused and OCCUiouild by reasou of l1isown ClUllle.il:lntlllll auu want of care ill failing to