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
TEXAS & P. RY. 00.
stop and look and listen for the approaching train; and defendant avers that said plaintiff had full opportunity to see and observe the approach of the moving train. but it says that. by reason of tb.e said negligence and want of care. plaintiff cannot recover.... This cause came on thereafter for trial before a jury, and resulted in a verdict for the plaintiff and against the delEmdant railway company in the sum of $4,500. Judgment was entered on the verdict. and a motion for a new trial was overruled, whereupon the railway oompany brought the case to this court by a writ of error. The first assignment of error is waived. The second assignment of error is: "That the court erred in the application of the railway company for the continuance on account of absence of witm'sses. W. P. Burts, J. J. Goodfellow, and J. T. Fields. because said applicationshoweu full and sufficient grounds for a continuance." The bill of exceptions in relation to this matter recites: "This cause was called for trial on the 20th of January. 1892. whereupon plaintiff announced' Ready.' and defendant. the Texas & Pacific Railway Company, announl'ed that it was not ready. anel moved the court for a continuan('e until next term. Plaintiff waiving a written motion, but demanding a strict showing for a continuance. defendant. throngh its altomey, George Thompson. stated that it was not ready for trial, for want of the t!>stimony of W. P. Burts. J. J. Goodfellow. and J. T. Fields; that said witnesses are material, and were absent without the procurPllltmt or consent of defendant; that said witnesses resided in Tarrant county. Tex.; that defendant had exercised due diligence to obtain the testimony of said witnesses, in this: that on the 14th day of January. 1892, it caused to be issued Ollt of said ('ourt a subpoona for said witnesses. which was duly served upon them. as appeared by said subpama; that this was the first application of the defendant for a continuance; and that the testimony of said witne8seH could be procured by next term of court. Upon fully considering said motion and application. the court determined the same insutDcieut, and not well taken, in that it did not show that said witnesses had been tendered their witness fees and mileage. the said witnesses by said application being shown to reside beyond the limits of the county in which the court was sitting; and said application was thereupon overruled. and the cause went to trial. to which defendant excepted." The. continuance of a cause at issue is a matter of discretion, and a refusal thereof is not assignable for error. Woods v. Young, 4 Cranch, 237; Sims v. Hundley. 6 How. 1; Barrow v. Hill, 13 How. 54; Thompl3O'n v. Selden, 20 How. 195; McFaul v. Ramsey, 20 How. 523; Cook v. Burley, 11 Wall. 659. It is suggested that since the above decisions were rendered the act of June 1, 1872, (Rev; St. U. S. § 914,) has been passed, conforming the practice and procedure of the circuit courts to that adopted in the courts of record of the state where such circuit court is held; and that, therefore, the decisions referred to can have no application to the question here raised. And it is contended that under the practice in the courts of Texas (Rev. St. Tex. arts. 1276,1277) the granting orrefusal of the first application for a continuance is not a matter of discretion Where the applicant for the continuance complies with the terms of said article; citing Cleveland v. Cole, 65 Tex. 404; Ohilson v. Reeves, 29 Tex. 279,-
J'Jl1DERAL REfORTER,' vol.
which 8E\em to sustain the contention as to the practice in the courts of 'fexas·. It is, however, to be noticed that the mode of summoning witness6sand taking testhnoily in the courts of the United States is regulated by statutes of the United States, and therefore the practice in the state courts in relation to such matters does not apply. See sections 876, 877, 914, Rev. St. And the question of diligence in summoning witnessesand procuring testimony should be tested by the]aws of the United States rather than by the practice in the state courts. The case of McFaul v. Ramsey, supra, is cited with approval in the. of Kennon v. Gilmer, 131 U. S. 22-24, 9 Sup. Ct. nep. 696, in which the court says: "By the statutes of the territory the court may, on good cause shown, change the place of trial, where tnere is reason to believe that an impartial trial cannot be had therein ; and an appeal lies to the supreme court of the territory from an order granting OE refusing a new trial. or from an order granting or refusing to grant a change of venue. Code Civil Proc. Mont. 1879, §§ 62, 408; Act Amend. Feb. 23,,1881. § 7.' But the statutes of the territory cannot enlarge the appellate jurisdiction of this court. The granting or denial of a qhange ,of venue, like, or refosal of a new trial, is a matter of .thEUlourt, ,not ordinarily reviewable by this court on writ of error. ,McFarJ,l v. }lam/iey. 20 How. 523; Kerr v. Olampitt, 95 U. S. 188; Raihoay OP. v..Heck.102 U.S. 120. And the refusal to grant a change of venue on the mere ,affidavit of the defendants' agent of the state of public opinion in tbe county clearly .involves a matter of fact and discretion, and is not a ruling upon a mere question of law." In the case qf COX)1. JIart, 12 Sup. Ct. Rep. 962, (decided on the 16th of the month, and not yet officially reported,) the supreme court again decides generally that the granting or refusing of an application for continuance is not reviewable on error. . In the courts of the United States motionsfor a new trial are addressed to their discretion, and whatever it may pe, cannot be reviewed on or of errpr. "This is a rule of law established by this court, anci not a mere matter of proceeding or practice in the circuit and district courts. Henderson v. Moore, 5 Cranch, 11; Doswell v. De Lalanza, 20 'How.29; Schuchardt v. Allena, 1 Wall. 371. It is therefore not within the act of congress of June 1, 1872, and cannot be affected by any state law upon the subject." Railroad Co. v. Horst, 93 U. S. 291301. In. .v.Selden, supra, the chief justice, delivering the opinion of tile says: .. And, as reg.ards the motiont!> continue the case; it has often been decided thilil court that the refusal ,of ali inferior court to contin ue a case to another cannot be assignee! for error here. Justice requires that the granting or refl/sitl pfa continuance IilhouJd 1;Ie left to the sound judicial discretion of the court wbere the motion is made, and where all of theeircumstances connected with it, and proper to be considered. can readily be brought before the court." to motions for a new trial change,s of venue applies with equal, if not more, force to applica. tions for continuance. Somel;lt.teSS is laid upoIi the first rule of court, (first rule oj' the circuitcourt, r,lorthern distrwt of Texas,) as follows:
We, think that the reasoning which applies
TEXAS &; P. RY. CO. V. NELSON·
..All laws and rules of procedure and practice prescribed by the legislature of the state of Texas as they now exist, or as they may be changed and amended from time to time, when the same do not conflict with the laws of the United States. or a rule of the supreme court of the United States or of this court, are hereby adopted as the rule of practice in this court," etc. A reading of the said rule shows that it is not as broad as the practice act, (Rev. St. § 914,) and we are disposed to think that it need not be considered. The third assignment of error is based upon the following bill of exceptions: "Plaintiff. Nelson. testified that he approached the crossing, going from east to west. and that the train which caused the injury was running northerly. and, that the street and railway tracks cross each other at right angles; that, While: a.pproaching the crossing. and until the time of the injury. he looked and listened and did his best to ascertain whether or not a train was 'approaching. but that he could not do so because of deep cuts, embankments covered with weeds. and obstructions, shutting out the view. He testified also that one Mrs. Butler and her two children and his wife were in the wagon at the time of the injury. Plaintiff's counsel then asked this queswith , "State\Vhether or not any of those in the wagon with yOll made any outcry indicating that a train was approaching.' To this question defendant objected, solelr for the reason that the same was incompetent. whereupon the court decided that the same was material, overruled the objection. and allowed the plaintiff to answer that no one made any outcry indicating that a train was approaching. " ,. .. The plaintiff's petition alleged that when he approached the crossing he did not, nor could he, see said railway track on each side thereof, and especially looking southward; nor did he, nor could he, see said approaching train until he was almost upon said crossing and railway, on account of the high embankment'3 on either side of said crossing, covered with weeds and other growth, fences, houses, and other obstructions to the view. The defendant, by a special answer, put in issue contr,ibutory negligence on the part of the plaintiff in failing to stop, and look and listen for the approaching train. In the light of these pleadIngs. and the testimony showing that at the time of plaintiff's injury other persons were in the wagon with him, we are unable to see any point whatever in the objection made to the plaintiff's stating whether any of those in the wagon with him made an outcry indicating that a train was approaching. If the defendant intended or proposed to offer evidence to show that the plaintiff was warMd as to the approach of the coming train, then the evidence was decidedly material. On the other hand, if defendant made no such contention, we fail to see how the answer to the question propounded could at all prejudice the defendant railway company. The fourth assignment of error is: "That the court erred in allowing the plaintiff to introduce any evidence over defendant's objection to section 259 of the Revised Criminal Ordinances of the city of Ft. Worth. Texas, prohibiting the mOVing of an engine within the city limitll o,f the city of Ft. Worth, Texas, without a bell being rung on the same, because it appeared that said ordinance Was void and iovalid, in that
the said city council of said city had no power to pass suchan ordinance under·the charter of the saidcUy of Ft. Worth." . The bill ofexceptioIi.$utlder which this assignment of error is made shows that the injury to 'plaintiffoccurred within the corporate limits ofthe oity of Ft. Worth; that the train was running at a highenate of speed than was permitted by the city ordinances. There was testimony that tended to prove that the bell was being rung and the whistle blown. There was also testimony tending to prove that no bell was .rung or whistle blown. Section 259 of the Revised Criminal Ordinances of the city ot:·Ft. Worth prohibits the running of an engine or car in said city without a bell attached thereto being rung before starting, anu all the time the same shall be in motion therein. Section 80 of the charter of the city of Ft. Worth, among other powers given in relation to the laying and construction of railway tracks, etc., confers the power upon the city coun.eil '.'to regulate or prohibit the blowing of locomotive whistles within the city, to direct the use and regulate the speed of locomotive engines in'said city, or to prevent or prohibit the use or running of the same within the city.» And section 85 of the same charter provides that"The city councll shall have powpr to pIlSS. pllblish. amend. or repeal all . ordinances. rules. and police regulations not contrary to the of this sl.ate;' for the I!ovl'rnment. pE'ace, and orller of the city; * * * to enforce the observance of all slJt'h rules. ordinances, and public regulations; and to punish Violations t.hereof by fines. penalties, aud costs." Under the powers granted in these ordinances, we are of the opinion that this assignment of error is not well taken, lor it seems perfectly competent under the power expressly given to direct the use and regulate the speed of locomotive engines in said city, and to prevent or prohibit the use or running of the same within the city, to' prevent or to prohibit the running of an engine without a bell attached thereto being rung before starting, and all the time the same shall be in motion. On the whole case, we find no reversible error on the part of the circuit court, and the judgrntlnt complained of is therefore affirmed, with costs.
et aI. v.
(Circuit Court 0/ .Appeals, Flfth,C&rcuU. Mar 80. 1832.)
Under Rev. St. Tex. art. giving a right of action for wrongful death,. Iiability for the acts of agents or servants is confined to common carriers, and all other persons are liable for their own acts alone. Hendrick v. 6 S. W. Rep. 749, 69 Tex. 192, followed. S.SAME-UNITBD ST"-TB. MAR8JUL - KILLINet 011' PRISONIIRS BY MOB - INCOMPETENT Under thts United States marshal, who, knowing that certam awles8 personslU'E! hostile to a prisoner in his custody, him for transport, shack'led to a deputy' whom he knows to be incompetent and unfit, is liable on his official bond, becaUBe of his own for the killing of such prisoner by a mob, the deputy'a unfitness. BRUCE, District Judge, dissenting.
DEPUTY. .. . . ' . ' · 1
DIIATH BY WRONGFUL ACT-ACTS OF SERVANTS AND AGENTS.