thisiPartictilar, under. the existing facts, the provisions of the city are in accOrd 'With the'rtile' of the common law. . . 'Tne' court left it to the jury to whether at the time the 'whistle was'blown there existed any immediate· or imminent danger to lIfe or wouIdrequire the blowing of the whistle asa warn· in whf4h case the court ruled that the'law would not hold'ithe·blowing of the whistle to be an act of, negligence. The vel,'" diet/of the jury, for the plaintiff below, necessarily negatives anr,'Cla.inl.that the-whistle was sounded as a warning of immediate dangm- .to.either property or persons, and therefore the proposition is reduced to the question whether the trial court, under the facts of the case, .w-as justified inholding, as matter of law, that the engineer was guUty of negli,gencein that wben protection or care for life or property did not call for the soundlng of the whistle as a warning and when by the terms of the city ordinance then in to sound the whistle, he nevertheless blew the same when the plaintiff and others, with the horses and vehicles forming the funeral procession, were in close proximity to the engine, and thel,'eby subjected the plaintiff and others to the danger of their horses taJdng fright at the steam and sound proceeding from the whistle thus blown. In our judgment the facts of this case fully justified stich ruling on part of the trial court, and no just exception can be taken to the charge either in whole or in part. As we construe the charge. as a whole, the trial court ,did not rule broadly that a violation of a city ordinance is always conclusive evidence of negligence, nor did the court give to the ordinance in question any other or greater probative force than was awarded to the ordinances in tM cases of Hayes v. Railroad' Co., 111 U. S. 228, 4 Sup. Rep. 369, and Railway'Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. Rep. 679, upon which counsel for plaintiff in error rely as giving the rule applicable to this case. We do not, therefore, feel called upon to decide the abstract proposition discussed by counsel for plaintiff in error, to wit, whether a violation, of a city ordinance, lawfully passed for the protection of life or property, is to be deemed negligence per sebecause the standard of care fixed by the ordinance has not been observed, or whether such violation is ,but a circumstance to be submitted to and weighed by the connection with all the other facts in considering the question of negligence. The judgment of the circuit court is affirmed.
HA.STINGS v. NORTHERN PA.C. R. CO.
(Circuit Court, D. Washington, N. D. November 22,1892., 1.
CARRIlIlJiS".,,!NJURY TO PASSENGER FOR JURY. CONTRmUTORY NEGLIGENCE QUESTION
In ,an' action against a railroad company for dama,ll'es for personal injuries caused by contracting a cold while traveling, the failure of plaintiff, who was inexperienced in traveling, to call attention of the company's employes to the coIl! condition of the car, before taking sick, would not preclude recovery, but its effect as bearing upon the question of contributory negligence should be left to the jury, to be determined from all the circumstances in the case.
HASTiNGS 1/. NORTHERN PAC. R.CO.
TRIAL-ApPJ.I04TION"";'COUR'1' R'QLBIil. .,.' Rule 24 of the circuit ,court fOJ: the, district of Washington provides that a motion for a new trial "shall be brought on for argumen't on the first succeeding motion day of the term at which it can be heard." Rule 55 provides that the court may in its discretion allow any act to be done after the time prescribed by the rules. field, that th,e court has the power to pass upon such a motion, although not made at the time specially i1esignated, when it is filed within the time fixed by stipulation of the parties, ARGUMENT TO THE COURT-READING DECISlONS:-IRESENCE OF JURY. In negligence cases the practice of reading <fecisions in the presence oithe jury is'notto be commended, bu.t it is not error to permit such reading in the argument addressed to the cO\lrt on questions of law after the evidence is in, the matter read is pertinent to the issues under discussion.
At Law. Action by Mintie Carver for damages on the ground of personal injuries caused by suffering from cold while traveling in a car on defendant's road. Verdict and judgment in the sum of $2,000 for plaintiff. Defendant moved in due time for a new trial, alleging. as grounds therefor, error in law occurring IIpon the trial; insufficiency of the evidence to justify the verdict; the verdict is contrary to the instructions given by the court; said motion was not called for hearing at the time fixed by the rules of court, nor until after the death of the plaintiff. H. H. A. Hastings, her administrator, having been substituted as party plaintiff, objected to the hearing of said motion. Objection overruled, and motion denied.
E. P. Dole and Frank S. Southard, for plaintiff.
Andrew F. Burleigh, for defendant.
HANFORD, District Judge. The plaintif'f makes an objection the hearing of a motion for a new trial, which was filed within the time fixed bya written stipulation of the parties. Said ob· jection is predicated upon that part of rule 24 of this court which prescribes that a motion for a new trial "shall be brought on for ar· gument on the :first succeeding motion day of the term at which it can be heard." This rule does no more than set a time for the hear· ing of a motion. If either party had appeared on the :first motion day at which· the judge who presided at the trial was present; and invoked the rule, the court would have been in duty bound to have granted a hearing, unless prevented from doing So by press of other business. Bnt both parties failed to so appear, and the court has not been called upon to hear the motion until the present time. The rule is not by its terms so rigid as to deprive the court of its power to pass upon a motion for· a new trial if it be not brought on for hearing at the time specially designated for the purpose, and I hold that it must be construed in connection wIth the fiftyfifth rule, which reads as follows: "The court, or a judge there, If, may, in the interest of justice, and upon such terms as may be just, allow any act to be done after the time prescribed by these rul!ls, or may enlarge the time allowed therefor." I therefore overrule said objection. Upon the trial of the case, after the introduction of the evidence, counsel for the plaintiff, as part of his argument addres,:;ed :to the court upon the law of the case, cited as an authority the opinion of the supreme court of Washington territory in the admiralty cause of Phelps v. The City of Panama, 1 Wash. T. 518, and read a portion of it. Counsel for the defendant objected to the reatling of said decision in the hearing of the jury, and asserted that the v.53F.no.2-15 .
()f the Uleplainti1f proaneffect:upon of the Juro1's", rather, than to en· the court. '.l'he, objection was overrmed,an<l an exception wa$l1laken and allowed. The ruling of thecoillI't upon said objection:: the alleged: enol' 'assigned, as one of the grounds for 'tha"present motion. ',' .' ",' ' , I do :Q,ot cOmn:J.end decisions,upon the trial of a negligeooecase,but in tblsmstance the court merely ,permitted the argmp.ent All was saId, was ,Pet,tinen,t 'tl;\.e' questIons 'at ISsue" and It wonld have been tyrannical for the' court to have assumed to control 'Original or borrowed expressions or 'selection9f, authorities, to; establish the proposi. tiOll8::of·,law which he ,relied <upon. I find no, reason for admitting I etircir wascomplitted in the failure' of" the court to mold tlf' the 'ar' 'e.nts. :,', " '" :"l:leveriiI of her relattves, .in, the month of FebIinary,1891,emigrate<l from Arkansas, viagt. Paul,to this state. The party paid second·class fare, and traveled over the defendant's road in a car to whiOhthey were ,t\I3sigliled at, the St. Paul depot by a person who assumed authority, to direct weather was extremely cold while they were passing through North Dakoh and Montana. The:ooceased froID.e<>Id, and became ill. Hel"ooBe'developedinto pneumonia, from :the effects. of which she neveff,irecovered. These facts are not disputed. There is a ,conl:1.iet in the: evidence, mt to whether or not the defendant WaSi;;l1ilty ,ofnegligenoe in failing to provide the: car with suitable meaus for Diaki.ng it comfortable, and to avoid exposure of the passengers thereinto discomfort from cold, as to whether or not the trainmen neglooted to keep up the fires 'in. the car, and<as to whether or not thedeoeased was guilty of contributory negligence in failing to pro· vide bmSelf, with ,poot>er clothing for such a journey. :Ko com· plaint condUctor by the deceased, or any of her traveling on acoount of coldness in the car, until after she had 'bec.ome ,ill,1 land no effort was made, to aecure medical aid for her until after her a.rrival at Seattle. From .:the evidence it may be fairly inferred that none of the party were experienced travelers; that whatever they lacked in the way of suitable equipments for the jourtrley, and their to make timely complaint to the con· their inexperience and, timidity. To prove that the' :p.egligenceeomplained of was the approximate and active cause of pneumonia in this case, ortbat the deceased would not have falIena victim to it notwithStanding the most ,ample provisions for her comfort which the defendant could have made, is in my opinion: an impossibility. ,Nevertheless, the' case as it was submitted parties.' involved, questions of fact as to whether or not the defendant r;wasnegligent, as charged in the complaint, whetheronJbot the deceased, lJustttined any personal injury in con, sequence and whether or not there WUlj ,con, tributory,. negligence on her part. These several. questions were by the instructions which the: court gave fairly submitted to the jury,
IN RE SUPERVISORS OF REGISTRATION.
and were by,th:everdictde.cidOO .the defendant. Upon 31'eview i dp the verdict to ,unsupported by sufficiE:mt legaleVldence, or contl1aI:Y t.Qthe instructions given. by the court. In the argument upon this motion the main reliance of the defend· ant seems to be upon the propoJ!lition that the failure of the de· ceased to promptly notify the conductor of the discomfort which "he liIuffered was D,flgligence on her PW,csufficient in law 'to preclude her from recovering damageE'l for any injury resulting from such discomfort. It is my opiniQu, however, that, in view of the circlUn· stances which the evidence tended to prove, it WM for the jUry ,to decide whether the failure of the deceased to complain was or was not negligence on her part. The question was suhmitted to the jury in the .chargegiven, and afterwards more speei.llcall;f in respouse to thll following inquiry made by the jur.v;
"Are we, the jury. to understand by the instructions of the court that the fail· ure of the t>laintiff to call tbe attention of the railroad employes to the cold condition of the car before taking sick as being contributory negligence to the extent of precluding her from recovering damages in this case?"
The response expresses the opinion which I now entertain, and was in words aafollows:
"I mean to tell you this, ,gentlemen: that if in any instance it was negligence for the plaintiff to keep still, and make no complaint, when she had an opportunity to make complaint, her failure to complain, if sbe did bave an opportunity to do so, would be contributory negligence, wllich would preclude her from recovering dam· Now it is for you to say, under all the circumstances of the case, whether, sItuated as she was, with the opportunities which she had, if any, to give informa· tion, if she kept still, and failed to make complaint when she could have made complaint, or ought to have made complaint, taking into account all the circumstances of the case, it was neglig-ence or not: because there may be circumstances under which a passenger would be guilty of no negligence whatever in not com· plaining to the conductor or tbe employes of the road, and. under other circumstances, a failure to complain would be negligence; for instance, if tbe officers or agents of the road were there and did not need to be informed, if they knew, with· out being told, that they were neglecting the car, and showed Ii disposition to disregard the comfort of the passengers. so that a passenger would deem it unnecessary to give the information, for tbe mere purpose of giving- information. it would not be regarded, under those circumstances, as being ntlgligence not to complain. If the car was left in charge of the brakeman. who was not attending to his duty, and the conductor was ignorant of that fact, and the passengers had an opportunity to tell this conductor, and call his attention to it, and ask for relief, but suffered him to remain in ignorance, and made DO complaint, then it would be such negligence as would preclude the passeng-er from any right to COmplain. Now I think you will understand that I am leaving the matter in your hauds, to decide on the evidence what the facts are, and whether. under these conditions. it was or was not negligence on the part of the plaintiff to not make complaint."
In re SUPEHVISORS OI!' (Circuit Court, D. New Hampshire. November 6, 1892.)
ELEc'1'IONs-ApPOINTME:'\'1' OF' SUPERVISORS-JURIsDICTION-PETI'l'ION.
It is doubtful whether a federal circuit court has jurisdiction to appoint supervisors of rE'gistration for a city of less thau 20,000 inhabitants, constituting only part of a county, or to make such appointments in any case unless the petition is filed at least 10 days before the commencement of registration; and Where, on such a petition; the appointment wonld result