J.OUISVILLE aN. R. co. 11. WARD.
secretary which are expressly defined in the act of 1871 cor· respond with those of the director, as they are defined in the General Laws. The order of names, as they appear in the act, may have been a mistake, but "ita lex scripta est." For the purpose of service, the secretary of the union school district was the same as the assessor of a primary school district. The order of the circuit court, issuing the writ of mandamus, is affirmed.
LomSVILLE & N. R. CO. v. WARD. (Circuit Court of Appeals, Seventh Circuit.
May 1, 1894.)
JUDGMENT-MonoN IN ARREST-DEFECT IN PLEADING.
A complaint against a railroad company for personal injuries to an em· ploYll, caused by a hole in its track, alleged that defendant, "by its servo ants," knew, or should have known, the condition of the track, but did not show that the servants referred to were not fellow servants of plain· tiff. Held, that this was not ground for a motion In arrest, the complaint being sufficient irrespective of that allegation. A statement, in an instruction upon the burden of proof, that defendant has interposed a general denial, is not objectionable as an assumption that such denial is the only defense interposed, especially Wl1ere other parts of the charge sufficiently present the other defenses. An instruction on a particular point or phase of a case is not erroneous merely because it does not cover some other point or phase,-even one correlative in character.
SAME-DIFFERENT POINTS INVOLVED.
SAME-DETERMINING WEIGHT OF EVIDENCE.
Where the testimony is conflicting, it is error to refuse to Instruct upon the mode of determining the preponderance of the evidence.
SERVANTS SAFETY OF
MASTER AND SERVANT-NEGLIGENCE OF FELLOW PLACE OF WORK.
Although a switchman and track repaIrers work in the same yard, and for the same general purpose of maintainIng and operating the railroad of theIr common employer, If an injury to the switchman Is caused by the trackmen negligently leavIng a dangerous hole in the traCk, theIr negli· gence is attributable to the employer, In view of his positIve duty to provide a reasonably safe place for the switchman's work, the measure of which dUty Is not changed by having it attended to by others. Railroad Co. v. Baugh, 13 Sup. Ct. 914, 149 U. S. 368, follOWed.
BAME-CONTRIBUTORY NEGI,IGENCE-COUPLING CARS.
The fact that a switchman, Injured while coupling cars, by reason of a hole in the track, might have selected another place to make the coupling, If he desIred, will not defeat his recovery for the Injury, unless he knew, or ought to have known, of the danger Incurred. In an action agaInst a raIlroad company by a SWitchman for injuries received whIle coupling cars, alleged to have been caused by a hole in the track, It appeared that he had neglected to use a coupling stick, as reo quired by the rules of the company. Held, that refusal of an instructIon requested, that If he was Injured by reason of such neglect he could not recover, was error, although a charge was gIven tlIat, to entitle him to reo cover, it should appear that the hole In the track was the sole cause of the
SAME-FAILURE TO USE COUPLING STICK-INSTRUCTIONS.
. hDERAL REPORTER',
'In Erfor to the Circuit Oou11 of the Unite.d ern District of lllinois. . . .. '" r ' .This was an action by John Ward against the Nashjury found a ville Railroad Company for personal injuries., of judgment verdict· for plaintiff. A motion by defendant in was denied, and. judgment for plaintiff was entered 0;0 the verdict. Defendant brought error. J. M. Hamill, for plaintiff in errOf. A. R. Taylor, for defendant in error. Before WOODS, Circuit Judge, and BAKER and.SEAMAN, District Judges.
WOODS, Circuit Judge. The motion in arrest of judgment was properly oyerruled. Though' inartistically drawn, the declaration, which .is in trespass for a personal injury received .by the plaintiff while: employed asa switchman in the yard of the defendant at East St. Louis,ny reason of a hole in the track, in, ",hich his foot was caught, shows a cause of action, and, if the allegations are in any particular imperfect, the, verdict cured the defect. The one objection made to the complaint is directed to the averment "that the by its servants having charge of keeping said track in repaIr knew, or by the exercise of ordinary care would have known, of said defective condition of the track in time to have repaired same, and· averted the injury to the plaintiff, yet they neglected to do so." But if itbe true, as it is insisted, that the servo ants here referred to, for all that is averred, may have been fellow servants, for whose conduct or negligence the company was not responsible to the pl!:lintiff, it is not material, irrespective of that allegation, the complaint is good against a motion in arrest, if not good even upon demurrer. After a description of the track at and near the place of the ;injury, it is charged that the defendant was negligent in maintaining the track in the dangerous and defective condition which caused the injury. If the defendant did not ¥now of the defective condition of its track, and under the circumstances its lack of kaowledge was not culpable, it is not true that it had been negligent as charged; and it was therefore· competent to prove what was necessary in that respect to establish the defendant's !responsibility. In instructing the jury the court said: "The defendant has interposed a general denial of all acts of negligence, and in this suit the pleadings throw the burden upon the plaintiff," etc. ; and it is urged that this statement erroneously assumed that a denial of all acts of negligence was the only defense interposed, when in fact the defendant was insisting that the plaintiff was injured by his own negligen.ceand b.r. the negligence of fellow servants. This part of the charge was intended to locate the burden of proof, and not to constitute a formal statement of the issues, though it was accurate enough for that purpose, as the defendant had interposed only the plea of not guilty. Besides, other parts of the chargecor-
LOUISVILLE & N. R. 00. !1. WARD.
rectly andsufticiently presented the question of contributory negligence. If the court erred in not instructing upon the doctrine that a servant has no remedy against the master for an injury caused by the negligence of fenow servants, it is not because of the mere omission to speak on the subject, but because of the refusal of the court to give special instructions which were asked. A proper instruction upon a particular point or phase of a case cannot be said to be merely because it does not cover some other point or phase, even though it be correlative in its character. For instance, the court, in this case, instructed "that the duty was imposed by law upon the defendant to use reasonable care to prevent an accident to the plaintiff;" but that did not involve, as is contended, an assumption that the p.1aintiff was not bound to use care to avoid danger. There was, however, no omission to instruct clearly and funy upon the latter point. The jury was instructed, not only that the plaintiff "must have exercised ordinary care and watchfulness in the manner of making the coupling," which is criticised as limiting his diligence to the act of coupling alone, but was told, further and generally, that he must have been, when the injury occurred, "in the exercise of due care for his own safety." If an instruction in any respect more explicit was desired, it should have been asked. Of the special instructions asked and refused, the most important, not covered by the charge given, was the following:
"If the plaintiff and the section men working on defendant's road, who worked on the track in the East St. Louis yards, were in the employment of the same master, and engaged in the same common employment, in carrying on the same general business of the defendant, they were in law fellow servants of the same master; and, if the plaintiff was injured by the negligence of any of the section men who worked on defendant's road in the East St. Louis yards, th!!n he cannot recover."
Numerous decisions on the subject have been cited, but the rule declared by the supreme court in Railroad Co. v. Baugh, 149 U. 8. 368, 13 8up. Ct. 914, is claimed to be broader, more comprehensive and far-reaching than any heretofore announced by that court. We therefore quote from the opinion in that case portions which we, deem to be especially pertinent to the present case. On page 383, 149 U. 8., and page 914, 13 8up. Ct., after stating the doctrine of the Ross Case, 112 U. 8. 377, 5 8up. Ct. 184, that the conductor of a train has the control of a distinct department and represents the master, the court says:
"But this rule can only be fairly applied when the different branches or departments of service are, in and of themselves, separate and distinct. Thus, between the law department of a railway corporation and the operating department, there is a natural and <1istinct separation,-one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So, oftentimes, there is in the affairs of such corporation what may be called the manufacturing or repair department, and another strictly operating department. These two departments are, in their relations to each other, as distinct and separate as though the work of each was carried on by a separate corporation."
And on page 386, 149 U. 8., and page 914, 13 8up. Ct.: v .61F.no. 9-5lJ
employlnra 8ervant hnpUedly engageawlth him tbat the plaee In whleh he II to work, and the tools or machinery with whleh he Is to work, or which he Is to be surrounded. shall be reasonably sate. It lit the master who Is to provide and the tools and the maehlnery, and, when he employs one to enter Into his liIervlee, he Impliedly says to him that there Is no other danger In the place.· the tools, and the machlnery,than sueh as Is .and necessary. Of course, some places and some kinds of machinery are more dangerous than others. but that Is something which Inheres. IJ;1 .the thing Itself, which Is a matter of necessity, /md cannot be 01). vlated. But, within sUch limits, the master who provides the place, the tools, and the maehlnery owes a positive dUty to his employ6 In respect thereto. That duty does not gato the extent of a guaranty of safety, but It reasonable precautions be taken to secure safety; and It. does matters not to the employ6 by Whom that safety Is secured, or the reasonable precautions thl:!refor taken. He has a right to look to the master for the disehargeof that duty, and if the master, Instead of discharging It himself, sees tit to have it attended to by others, that does not ehange the measure of obll· gatlon to the Elmpl()y6, or the latter's right to Insist that reasonable precaution shall be taken to secure safety in these respects. Therefore, It will be seen that the questlon turns rather on the eharacter of the act than on the rela· tions of the employl'ls to each other. It the act Is one done In the discharge of some positive duty of;the Illaster to the servant, then negligence In the act Is the negllgenee of the master; but, if it be not one In the discharge of such positive duty, th¢n there should be some personal wrong on the part of the employer before he is held liable .therefor."
After' quoting here ftom the opinion in Railroad Co. v. Moore, 29 Kan. 632, 6H, the court adds:
"It would be easy to aecumulate authorities on these propositions, for qUel!ltions of this kind are constantly arising in the eourts. It is enough, however, to refer to those In this eourt.. In the cases of Hough v. Railway Co., 100 U. S. 213, and Railroad Co. v. Herbert, 116U.S. 642, 6 Sup. Ct. 590, this court reeognized the master's obligation to provide reasonably suitable plaee and machinery. and that a tallure to discharge this duty exposed him. to liability for injury caused thereby to the servant, and that It WaS immaterial how or by whom the master diseharged that duty. The lIablllty was not made to depend in any manner upon the grade of service of a eoemploY6, but upon the eharacter of the act itself, and a breach of the positive obligation of the master."
While the e:taet question in that case was whether or not, under the circumstances stated, the engineer in charge of the locomotive was, in respect to the firetnan who was hurt, a representative of the master, or only a fellow servant, the portions of the opinion which we have quoted enunciate ve-rs clearlY"'and, for UB, authoritativelythe prop()sitions that the master employing a servant impliedly en· gages that the place in which he is to work shall be reasonably safe; that he owes a positive duty to his employe in that respect; that if, instead of discharging that duty himself, he sees fit to have it attended to by another, that does not change the measure of his obligation; that the question of the master's responsibility turns rather on theeharacter of the act than on the relation of the em· ployes to each other, and· matter by whom done, if the act is one In the discharge of some positive dllty of the master, then negligence !in the act is the negligence of the master. It is not material, therefore, that the switchman, who in this instance was injured, and the track repairers,whose negligence caused the injury, worked in the same yard, and for the same general purpose of maintaining and the railroad oftheir common employer. It was a duty which
LOUISVILLE & N. R. CO. fl. WARD.
under implied contract, the railroad company owed to the switchman, to keep the yard and tracks where he was employed to do his work-hazardous enough under the most favorable conditionsin a reasonably safe condition; and if the trackmen to whom the discharge of that duty was intrusted negligently left in the track, and between the ties, which they had recently been ballasting" a dangerous hole, which caused the injury complained of, their negligence was attributable to the plaintiff in error, and the case was properly submitted to the jury without reference to the question of responsibility for injuries caused by fellow servants. The court was asked, and refused, to give the following instruction:
"If you believe from the evidence that the plaintiff voluntarily selected and ehose the place where he went In between the cars to make the coupling, when, If he had desired so to do, he could have selected another place to make the coupling, then he cannot recover."
There was no error in refusing this, and another instruction sub· stantially like it, because they left out of view the inquiry whether the plaintiff knew, or ought to have known, of the danger incurred by making the attempt where it was made. Though the testimony in the case was conflicting, the court gave no instruction touching the credibility of witnesses and the weight of evidence, and refused the following asked by the appellant:
"In determining where the weight or the preponderance of the evidence lies, you cannot arbItrarily, and without cause, disregard or set aside the evidence of any of the wItnesses whose testimony has not been successfully contradIcted or Impeached; but you should carefully and impartially weigh the evidence of all of the witnesses whose evidence has not been successfully contradicted or Impeached,-taklng Into consIderation their manner and bearing on the witness stand, their means of knowledge about the matters to which they have testified, and what interest, If any, they have In the matters involved In' the controversy,-and from all these circumstances, as well as from the number of witnesses who have testified to one or more facts at issue in this case, determine where the true preponderance of the evidence lies, and render your verdict accordingly."
No objection to this request has been pointed out, and we perceive none. By the rules of the railroad company, coupling sticks were required to be furnished to switchmen, couplers, and freight-train brakemen, and the coupling of cars by hand strictly forbidden. The defendant in error admitted his knowledge of the rules in this respect, and testified that he had been supplied with a coupling stick, that he did not use it, and that when he was hurt he was attempting to make the coupling by hand. Upon these facts the court was asked, but refused, to instruct that if the plaintiff was injured by reason of his neglect to use the coupling stick he could not recover. On this subject a number of cases are cited by the plaintiff in error, including Wolsey v. Railway Co., 33 Ohio St. 227, 229; Lyon v. Railroad Co., 31 Mich. 420; Gardner v. Railroad Co., 58 Mich. 584, 26 N. W. 301; Russell v. Railroad Co., 47 Fed. 204. But it is insisted, on the other hand, that these authorities are not applicable, because, under the charge which the court gave, the verdict necessarily means that the accident was caused solely by the hole in the track, and that
the coupling was in no way cOD:Q.ected with it. WhUe' tlle court did ins-n-uct to the effect that,. to entitle the plaintiff to recover, it should appear that the hole or depression between the ties was the Iilole cause of the injury, it is impossible to say that if the fllrtheriJ:I.struction asked had, been given the. jury would not have fqund th..atw.e plaintiff's negleCt to use the coupling stick, and his undertaking to effect the coupling by hand, were efficient contributory causes. The instruction asked should have been given, and if there were cOlliJiderations-of wl;l.ich, however, no suggestion has been made here-tending to show that in this instance the fail· ure of the plaintiff to comply with the rules of the company was not culpable, or did not contribute to the injury, they should have been . submitted to the determination of The judgment is reversed, and the cause remanded, with instructions to grant a new trial.
mON SILVER MIN. CO. v. CAMPBELL et a!. (Circuit Court of Appeals, Eighth Circuit. May 7, 1894.) No. 356.
NEW Tnu,L AS OF RIGHT-ACTION FOR POSSESSION OF PROPERTY. Code Civ. Proc. Colo. 1887, § 272, provides that in all. action to recover
possession of real property, "whenever judgment shall tie rendered against either party," he may, before the next term, pay the costs recovered, and on his .,application the court shall grant a new "and neither party shall have but one new trial in any case as of right without shQwing cause." Held to apply to,aAefeated party in suchan action, who has never had a neW trial of his ,case ns of right, under that statute, regardless of the number of new trialilhe may hs.vehad for cause. .
In Error to the Circuit Court of the United States for the District of Colorado. This was an action by Peter Campbell and others against the Iron Silver Mining Company for .possession of real property. A judgment for plaintiffs was on appeal to the supreme court, and a new trial ordered. 10 Sup. Ct. 765. On the new trial the jury found a verdict for plaintiffs, and judgment for them was entered thereon. Defendant made a motion to vacate the judgment, and for a new trial as of right, whi<Jh was granted (56 Fed. 133), but subsequently the 'order thereon was vacated. Defendant brought error. . Joel F. Vaile (Edward 0, Wolcott and Frank W. Owers, on the brief), for plaintiff in error. Thomas M. Patterson, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
SANBORN, Circuit Judge, delivered the opinion of the court. Is the defeated party in an action for the recovery of the possession of real property entitled to, a new trial as of right, under the Colorado statutes, after a second judgment has been rendered against him on the verdict of a jury in a case in which the first