WqRTH'I7. CHICAGO, M. &: ST. P.RY. CO.
only" the question whether the defendant bank agreed to pay Tate's check for $22,000, and, as already stated, that, in our judgment, is just what the bank, in the answer it returned to the telegram sent to it, bound itself to do; and when, on the faith of this promi5e, the cattle company delivered the cattle to Tate, and accepted the check in payment, the bank became legally liable for the payment of the check in question. It is said, however, that the check presented is not the same as the check named in the telegraphic correspondence, because it contains the words "with exchange," and thereby the amount needed to pay the .check is inci'eased over the sum named in the telegram. This is evidently an afterthought. This objection was not taken when the check was presented, and it is wholly without merit. No legal force can be given to these words. They cannot be construed to increase the amount called for by the check, and they are clearly and are therefore to be disregarded. The check is dated at Westboro, Mo., and is payable at Westboro, and therefore there is no basis for calculating exchange. The bank is not directed to pay $22,000 with exchange on Chicago, New York, or any other place. According to its terms, it called for the payment at Westboro, Mo., of the sum of $22,000, which is justthe sum, no more and no less, which the bank agreed to pay by the answer it rE'turned to the telegram sent it on behalf of the cattle com.;. pany. Thejudglllent below is affirmed, at cost of plaintiff in error·
M. & ST. P. Ri-. Co.
(OirCUit Court, N. D. Iowa. July 9, 1899.)
CARRJERlh-INJURY TOPASSE::'IGltaS-AnMISSmJLJTYOF EVIDIINCE.
In an action for injuries caused to a passenger by the derailing of 8. cal', defendant introduced evidence tending to show that the derailment was caused by a t.ie in the frog of a sWitch; that IIbortly beforetbe accident. four persons were· seen· upon the track in. the vicinity, who seemed to avoid meeting another person walking' along the track; that in tbe neighborhood· was the cainp of certain persons who had been employed in repairing the tracks, but ·who had been discharged, causing ill feeling. Held, tbat it was competent to furtber prove that two of these persons had shortly before made tbreats against the company, and that one of them had said be would ditch the train. lJUller v. Rtl.Uroad Cu., (Or.) 26 Pac. Rep. 75, distinguished.. .
At Law. Action by Mrs. William Worth against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for personal injuries. Verdict for deli:mdant. The case is now hearJ on motion for a .new trial. Denied. Rickel Crocker and Charles C. Clark, for plaintiff. Mills Keeler, for defendant.
SHIRAS, District Judge. The plaintiff herein was a passenger upon 8 train upon defendant's road, going eastw&lird from OouDcilBluffs, Iowa,
aP9",hi-chwas, deraile<l the point where the track crosses the Coon thil!l&ctionwas brought to recover for the injuries caused totbe person of plaintiff. The fact of the derailment of the trainw:l:loS 110t disputed,the company claiming, however, that such dedue, not to any negligence on its part, but to the fact that a tie was placed by some third person or persons in a frog upon the traokdQr the purpose of wrecking the train. Upon the trial, evidence was introduced tending to show that a tie had been placed in a frog near the bridge crossing the Coon river; that the frog waslocated near a camp occupied by persons who had been employed in making repairs upon the shortly before the accident, which occurred after dark, f91lr,PersoJlS ,were seen upon the track in the neighborhood of the bridge; seemed. to avoid meeting another person, who was the track; that a few <4Y8 .before the accident several of the upon the track ha.d heen discharged, causing ill feelpltrt; that w"jthip 36 hours o.f the accident two of these paring threats,":'ttheone, tha.tthe company would "catch hell; l' the,ot;!;ler, thltt unless he, was paid at once "he would ditch the train." Qharged the jurY that if the train was derailed through the act of.som,.e: third party ip placing an obstruction upon the track, and care in patrolling the track, and was not in f",\J1t in ,not having discovered the obstruction, the company would not be liablA to the passenger. The verdict of the jury was in favor of the defendant, and plaintiff now moves for a new trial, on the ground that the court erred in admitting the evidence regarding the threats made by the discharged employes of the road. Counsel for plaintiff, ,in their Qrief and argument, cite but one case in that the court erred in admitting the testisupport of the v.· Railroad Co., (Qr.) 26 Pac. Rep. mony in question; tba.t Qelng 75, in which it was held 'that in a suit for injuries caused by the derailment of a train through a:misplaced switch, evidence of the conviction of6ne> Hillin's. criminalproceeding,fordisarrariging the switch, and were inadmissible. in the criminal was rea intel'alio8 acta, and therefore not competentev:ldence for either party in the civil suit for damages, and as against the company, be.merely the confessi<:lD,'p-lade by a':recital oflt,past event, not under oath, and hence the evidence of such statement was merely hearsay, and therefore not competent. In the case at bar the evidence admitted was not a statement or rooitalof'a'pastevent, but Was a declaration tending to show a then existingS1&teof mind; or, in other words,tended to show a hostile and Of feeling onpart of the discharged employes towards the railway company·. Under the. instructions of the court to the jury the defendant was beund DQt .only to show that the train was derailed by the presence of a tie or other like obstruction in the frog, but also that the same was placed there intentionally by some third party. If the. .defendant had rested the ciuJe" with evidence showing that ,the train wRsderailed bjY an obstruction at the .frog, the argument would. have
WORTH 'II. CHICAGO, M. & ST. P. 'BY. CO.
been pressed with great force that the jury could not assume that the tie was thus placed there intentionally, and with the fell purpose of throwing the train from the track, and that, in the absence of evidence tending to show such a motive or purpose, the jury would be bound to lUfer that the obstruction was not put upon the track intentionally. This evidence was of the same nature as that showing that persons acting in a suspicious manner had been seen in the immediate vicinity of the accident shortly before it happened. The fact that counsel for plaintiff, not only at the trial, but upon the motion, so strenuously contend against the admission thereof, shows that they appreciate the effect of the evidence and recognize its probative force, and the question is reduced, therefore, to the single proposition of its competency, its materiality being practically admitted. The position taken by the defendant on the trial was that the train had· been wrecked through the intentional wrongdoing of a third party., and to sustain this defense evidence was introduced· tending to show that the train had been derailed by an obstruction in the frog; and to prove thatthis had been intentionally placed in the frog, evideI1ce showing the position ofthe obstruction was given, tending to show that it required human agency to so place it, and it was then shown that there had been difficulty between the company and persons employed in repairing the track, leading to the discharge of some of the latter, thus creating ill feeling towards the company; that two of the persons discharged had made the threats admitted in evidence shortly before the accident, and that on the evening of the accident four persons had been seen on the track. close to the place where the train was derailed, who acted suspiciously; and upanthese facts, thus linked together, the company rested this defense. If evidence of the other facts in this chain of circumstances was admissible (arid the contrary is not contended) no good ground is perceived why the fact of the threats made should alone be, excluded. 'ltis the fact that the threats were made that was proven, and why this fact could not be proved, as well as any and all other facts bearing upon the question; is not made apparent. The objection urged in argument of counsel for plaintiff, that great injustice might rl!sult if such evidence is held to be competent, is no more applicable t6 testimony of this nature than to any other fact proved as one of many circumstances relied on in establishing a given case or defense. Its truth or falsity,as welhts its probative weight, is for the jury to determine. It IS also said that a threat to do an act in the future is not proof that the person'will in fact db the act threatened. It may not be proof conclusive, buHt may be evidence competent to be considered with other faots in determining the question. Thus, if the two persons who had made the threats in question had been charged, "either civilly or criminally, with the tort of having wrecked the train, can it be questioned that on the trial of the case evidence of the threats made by them would have been competent as tending to show their complicity: in the wrong done?· When the same issue of fact was made in this case, why were not allfaots competent in the supposed caae
CGinpetent mj·,this?, !I!:·th. parfiesAt the time of the- accident had formed ihtention of wreckingithe' train, suchl intentioniwould be a material fact upon the question. whether the train was accidentally or in,tentionally derailed, and what better evidence oia intention can ¥,intooduced than his declaration 'thereof? Insurancs 00. v; Hillman, Rep. 912, This was 'an action brought to recover upon a upon·thellife of John-W. Hillman, who it was cIa-imed was by an accidental dischargeofa gunjbut upon the part of the OODlpaUJ it was claimed that the body produced as that .of Hillman was notstNn fact, but was that'of one:Walters, who had been killed when accompanying Hillman in a trip through southern Kansas. The queetion'whether Walters had in trnth .leit Wichita in company with Hillman was one of the disputed matters' in the case, and upon this point the couit held that letters written from Wichita by Walters to his friends in IowR, stating his purpose to go with Hillman, were admissible, as being evidence of hisjntention at the time of writing them, "which was a. material Jactbearing ·upon the question at issue." Aller the best reflection-I have been able to give to .tbecase, I remain Qf the opinion thatthe evidence excepted to WIJ.ll rightfully admitted. and hence the motionlor,newtrial is overruled.
Ry. Co. ,.LApsLE't.
E1qhth CirouU, .
the gratultoul\ invitation of tlle OWtull' aTU! dl"fvel' of 1\ Tehicle to· J'lde'wlt:h blm,'and 'exerclses no oontrol over iuch driver, tbe lu.tter's negligence .cannot b6lmputed;to '.bill guest, so 88 to defeat bls J'OICOVery .gai DSt · third person fortnjurlel\ resultjng frOlUtbeooncurring negligence ottbe driveru.nd such tbird person. 50 Fell. Rep. 172, aalrmed. LUt£e T. HlWkett, 6 Sup, Ct.. Rep. 11\11,
116 11. B. 866,followed., '
In Error tQ the of the U'nited States' for the Northern District of Actio)), as adrt:linistrator qftheea,ta.te of Eliza J. Lapsley ,agAinat the ColD paqy, to recover dam· the of his iqtestat,e. Verdict and judgment for t.M:SlJm ()f: $l ,QPO. F:or the oharge of theCQurt to the jury, ·Dftfendall,t brings A,ffi.rmed. . The 1\'ho was ,the adminiaEUzaJ. ,deceased, and.l:>rollght thisaot.iQQ ltaQij10 RaUw:ayPQmpllny tq repover 'damages,for .·the negijgent..kijling of the The, evidence following Ou 1.&99" Was ,liviq.g on a. farm