is,'slJ,fficientto Sliyttiat he seems to have undertaken to represent tllerailroad ilZOmpany in the matter, a.nd made no question whatevel'asto his authority to act in,the premises.' He and from this desig. natIon It would seem that benaii,g.eneral supervision over aU' its freightbuainess, and really appea1'Slto have been the proper person, of all others, upon whom demand: should have been made. If not, heat least shouldha.ve TeferredthE! representative of the intervener to some one else who had authoritY to act in the ma.tter. The exception:$ must be. overruled, and the report of the master be confirmed.
CHIQAGO, R. 1.& P. RY. 00. v. SUTTON. (Circuit Court of Appeals, Eighth Circuit September 10, 1894.)
Is Ilable for an 'injury cau$edby the concl,1rrlng negligence of hImself and a third party to the same 'extent as for one caused entirely by his own '. negligence.
In Error to the Circuit Court of the United States for the District of Kansas. ,',' This was an action, by Fred. Sutton the Chicago, Rock Island & Pacific Railway Company to recover damages for personal injuries. W. F .. Evans (Y. A. Low andJ. E. Dolman, on the brief), for plaintiff in error. ThofuasP:Fenlon,Jr. (T. P. FenIon, on the brief), for defendant in error. BefQre.1H1ElWER, ,Circuit Justice, and CALDWELL and SAN· Judges. SANBORN, Circuit Judge. On October 23, 1892, while Fred Sutton, the defendlPlt in error, was performing his duties as a .brakemlUl on one of the trains of the Chicago, Burlingt.on & Quincy RaUJX)8.dCompany ata raill'oadcrossing near Reynolds, in the state of Nebraska, an engine and train of cars of the Chicago, Rock Island &'Pacific Railway Oompany,:the plaintiff in error, collided ,with the. train of the Bnrlington COmpany, and injured bim. He ;sued the Rock Island Oompanyfor damages for this injury, which be was caused by its negligence. That company denied any negligence on its part, and alleged that.the negligence of tbe Burlington Company caused the injury, and that the defendant in ervor was guilty of contributory negligence. There was no evidence· of any contributory negligence on the part of the defendant ih (error upOn' the trial, and ·the court, without objection, so charged the jury. The question "ihether or not the Rock Island ,Oompany wasgnilty of negligence that was the proximate cause of the injurY was submitted to the jury under instructions to which:
CHICAGO, R. I. & P. RY. CO. 'II. SUTTON.
no objection is made, and the jmy found that it was, and returned a verdict for the defendant in error. Complaint is made of but a single supposed error in the trial of this case. It is in effect that the court below refused to charge the jury that, under a certain statute of the state of Nebraska, the conductor and engineer of the Burlington train were negligent in running it upon the crossing without stopping it as they approached, and that it did charge the jury that these employes were permitted to run the train over the crossing without stopping it if the signals the company there maintained indicated no danger in so crossing. But whether this instruction was right or wrong is entirely immaterial to the decision of this case. The only defenses the Roek Island Company had were that it was not guilty of any negligence that was the proximate cause of the injury, and that the negligence of the defendant in error contributed to it. If the injury was not caused by the negligence of the Rock Island Company, it was entirely immaterial in this suit whose negligence did cause it. If the neglig1ence of the Rock Island Company was the proximate cause of the injury, it was equally immaterial that the negligence of a third party contributed to it. One is liable for an injury caused by the concurring neglig1ence of himself and a third party to the same extent as for one caused entirely by his own negligence. It is no defense for a wrongdoer that a third party shared the guilt of the same wrongful act, nor can he escape liability for the damages he has caused on the ground that the wrongful act of a third party contributed to the injury. In the case at bar it is conceded that the defendant in error was guilty of no contributory negligence. The verdict of the jury established the fact that the negligence of the Rock Island Company was the proximate cause of the injury. That the negligence of the Burlington Company, or of any other third party, contributed to this injury, can in no way affect the result in this action, and hence it is not important to determine whether the charge of the court as to the negligence of the Burlington Company was right or wrong. If it was right it could have done no harm, and if it was wrong it was error without prejudice. Railway Co. v. Cummings, 106 U. S. 700, 702, 1 Sup. ct. 493; Railway Co. v. Callaghan, 6 C. C. A. 205, 206, 56 Fed. 988; Harrima.n v. Railway Co., 45 Ohio St. 11,32,12 N. E. 451; Lane v. Atlantic Works, 111 Mass. 136; Griffin v. Railroad Co., 148 Mass. 143, 145, 19 N. E. 166; Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 !trass. 575; Booth v. Railroad 00.,73 N. Y. 38; Cone v. Railroad Co., 81 N. Y. 206. The judg.. ment must be affirmed, with costs, and it is so ordered.
CHICAGO, R. I. & P.
.(Circult Court' of Appeals, Eighth Circuit.
September 10, 1894.)
RAILROAD COMPA'tiIES-INJURIES TO PERSONS ON TRACX- DEGREE OF CARIll REQUIRED. ,
A .locomotive engineer, approaching a place where a footpath crosses the. track, is . bound to exercise only ordinary care and watchfulness to discover and warn people and avoid injuring them; and an instruction which requires "all the care possible,"-the "highest possible care,"-and the amount of watchfulness nepessary to discover a person on the track, Is erroneous.
A.PP:l!lAL-PREJUl)ICIAL ERROR-ERRONEOUS CHARGE.
It Is sufllclent to warrant a l'eV'ersal that the charge was erroneous; that It may have misled the jury; and that It does not affirmatively appear that the misdirection was harmless. Railroad Co. v. McClurg, 8 C. C. A. 322, 59 Fed. 800.
Mental sufl'eringlnduced byplalntlfl"s crippled condition, such as feelings or mortification because he is not sound in body and limb, cannot be Considered in tixlng the damages.
DAMAGES FOR PERSONAL INJURIES,....MENTAL SUFFERING.
In Error to the Circuit Court of the United States for the West· ern District of Missouri. This was an action by John J. Caulfield, by his next friend, Michael J. Caulfield, against the Chicago, Rock Island & Pacific Railway Company, to recover. qamages for personal injuries. Verdict and judgment were rendered for plaintiff, and defendant brought the case on error to this court. StePl1en S. Brown (J. E. Dolman, on the brief), fOf plaintiff in errof· . O.ArMoslllan and James C. Davis, for defendant in error. Befoll' QALDWELL, SANBOllN, and Circuit Judges.
THAYER, Circuit Judge. This is a suit for personal injuries, which .ol.'iginated in the city of St. J o,seph, Mo. The a'ction was brought by John J. Caulfield, the defendant in error, against the Chicago, IL>,ck Is1lWd & Pacific RaHway Oompany, the plaintiff in error, in the circllit court for Buchanan county, state of Missouri, from :whence it was removed to the Unjted States circuit court for the.: district of Missouri. .It was tried in the latter court, a,nd resulted in a verdict and judgment against the railway company. The erro1'8. that have been. assigned relate to the instructions that were given by the trial court. A brief statement of the circumstances under which the injuries were sustained is essential to a correct understanding of the questions that we have to determine. The accident occurred in a railroad yard in the city of st. Joseph, which appears to have been used in common by several railroad companies, about 6 o'clock p. m., on the evening of the 29th day of May, 1890. At that hour, one of the defendant company's engineers, who had charge of a switch engine, was taking the engine