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
CHICAGO, R. I. & P. RY. CO. V. CAULFIELD.
to the roundhouse at the conclusion of the day's labor. At a certain point on the way to the roundhouse, where there were three tracks belonging to as many different railroads, which were laid side by side, was a footpath across these tracks, which was used by many people, especially in the morning and in the evening, when they were going to or returning from their place of work. Where this path led across the track, the plaintiff, John J. Caulfield, who was a boy between eight and nine years old, was run over by the switch engine in question, and was severely injured. Some distance to the north of the point where the accident occurred, the track on which the switch engine was moving on its way to the roundhouse was crossed obliquely by three other railroad tracks, and before going over that crossing, just prior to the accident, the switch engine stopped and whistled, as it was its duty to do, and then moved south over the crossing to the place where the plaintiff was run over and injured. The engineer, with respect to his own conduct on that occasion, gave evidence tending to show that when he reached the aforesaid raill'oad crossing, and stopped to whistle, he saw a boy standing about 3! rail lengths south of the above-mentioned footpath; that the boy was standing at the time on the end of one of the ties of the Rock Island road, so near to the rail that he would be struck by the engine; that he kept his eye on the boy, and rang the engine bell, but that he seemed to pay no attention to the warning, whereupon an alarm whistle was sounded; that the boy then turned around, and looked at the engineer, who motioned to him with one hand, and that he then stepped off from the tie, and to a sufficient distance from the track to allow the engine to pass in safety; that he then started his engine forward, going at the rate of from three to four miles per hour; and that, when he came within ten or twelve feet of the boy, the latter started to run across the track immediately in front of the engine, whereupon, according to the engineer's statement, he reversed his engine, put on the vacuum brake, and stopped it as soon as possible, but not in time to avoid the injury. On the other hand, there was evidence in behalf of the plaintiff bel.ow which tended to show that the switch engine was running at the rate of from five to eight miles per hour, and that as it moved south over the railroad crossing above mentioned, and until it reached the footpath where the boy was hurt, the engineer in charge of the same was looking west at an excursion train, moving north on an. adjoining track, and was not looking down the track in the direction in which the switch engine was moving, and that he did not give any proper signal to warn people who might be on the footpath of impending danger. The evidence for the plaintiff further tended to show that, at the same time, the boy was standing in the center of the Rock Island track, immediately in front of the approaching switch engine, and that he was also looking west in the direction of the excursion train, and was apparently unaware of the approach of the switch engine until it was too late to get off the track. It will thus be seen that the
evidence was conflicting, and that the .case made by the plaintiff differed essentially from the case made by the defendant company. We have not thought it necessary to quote the charge of the court infiII1,as very much that was said is unexceptionable, and has not beeI,J. .challenged. The following excerpts therefrom embody the alleged errors which have beep assigned. Speaking of the degree of care which the engineer of 'the switch engine was bound to exercise, the trial judge said: .. "If that was a passageway of that kind, and this plaintiff was upon that passageway, or near it, at the time of the injury, and the engineer in charge of that engine saw him, and he l!faw him in time to have p':t'evented any injury to him by the exercise of that amount of care required by the law to be exercised, and that is the highest possible care under the circumstances he could exercise in the management of his engine. We are to bear in mind that these engines dangerous, and when they are so, and there is danger of their killing and maiming, the man in charge has to exercise all the care possible for him to exercise under the circumstances to prevent that calamity. Then, if he saw the plaintiff in time to stopped his engine, in time to have prevented the injury by the exercise of that reasonable care which he is called upon to exercise in a case of that kind,-the highest possible care he could exercise· under the circumstances,-that is exactly what a reasonable man would do when surrounded by such a condition, and it is that reasonable care which he is required to exercise." Furthermore, the court directed the jury that it was the duty of the engineer "to use the most effective means to prevent injury." It also said that, "if he failed of his duty by failing to exercise the amount of care necessary to discover the presence of the party, there would be a liability on the part of the company." For obvious rea· sons, we have not been able to approve the foregoing portions of the charge, which clearly imposed upon the defendant's engineer the duty of exercising "all the care possible * * 'It to prevent the calamity," and 'tthe highest possible care he could exercise under the circumstances,"and which also seem to declare that the railway com· pany was in any event liable if it failed to exercise the amount ()f watchfulness necessary to discover the presence of a party on its track. It does not seem to be seriously claimed by counsel for the defendant in error that the defendant company was bound to exer· cise that high degree of care which is indicated by the foregoing extracts from the charge, and it may be safely asserted that the authorities cited do not support s1lch a contention. According to the great weight of authority, the engineer in charge of the switch engine was bound to exercise ordinary care and watchfulness, both in looking out for people who might be on the track at the place in question and in giving them timely warning of the approach of the engine, and in taking other reasonable precautions to avoid injuring them. In other words, the engineer was required to exercise that degree of cltreand skill which a person of ordinary prudence would have exercised at the time and place of the accident, having reference to the age and size of the boy who was seen in proximity to the
CHICAGO,R.' I. & P. RY. CO. V. CA.UFIELD.
track. Guenther v. Railway Co., 108 Mo. 18,18 S. W. 846; Prewitt v. Eddy, 115 Mo. 283, 21 S. W. 742; and cases cited; Railway 00. v. McElmurray (Te:s:. Civ. App.) 25 S. W. 324; Railway Co. v. McDonald, 75 Te:s:. 41, 12 S. W. 8M. In the respects above indicated, the charge of the trial court was undoubtedly erroneous, and we are unable to say that the error in question did not mislead the jury to the prejudice of the defendant company. Inasmuch as the court directed the jury that the defendant's 'engineer was bound to e:s:ercise the "highest possible care he could e:s:ercise under the circumstances," and inasmuch as the engineer testified that he saw the plaintiff when the switch engine must have been from 300 to 400 feet distant from where the accident occurred, it may have been that the jury found against the defendant because the engineer failed to take some precaution which, in the e:s:ercise of ordinary care, he was under no obligation to take. The jury may have thought that the engineer had no right to proceed with his engine, no matter how slowly, after discovering the boy in prorimity to the track, until he had left that neighborhood and was entirely out of danger; or it may have been that the jury believed the engineer to have been guilty of some other slight error of judgment, which rendered him culpable within the stringent rule of liability announced by the trial court. But it is unnecessary to indulge in speculations of this nature. It is sufficient to warrant a reversal of the case that the charge was erroneous; that it may have misled the jury; and that it does not affirmatively appear that the misdirection was a harmless error. Railroad Co. v. McClurg, 8 C. C. A. 322, 59 Fed. 860. As the case must be remanded for a new trial for the reasons heretofore indicated, it will be well to call attention to another e:s:ception taken to the charge of the trial court touching the assessment of damages, which also appears to us to be well taken. The court instructed the jury that, in assessing the plaintiff's damages, they had a right "to take into consideration his mental suffering because of his crippled condition, and to take into consideration his physical suffering endured by him while his wounds were healing." The allusion thus made to "mental suffering" induced by the plaintiff's crippled condition, as distinguished from "physical suffering," appears to have been to those feelings of mortifi,cation which the plain. tiff might experience in after life because he was not sound in body and limb. If such was the idea intended to be conveyed by the instruction, then we think that the court erred in allowing the jury to assess damages of that nature. Bovee v. Danville, 53 Vt. 190. The judgment of the circuit court is reversed, and the cause is remanded, with directions to grant a new trial.
Court of "
GOODLANDER HILL CO. v.STANDARD OIL CO. Circuit. May 31. 1894.J No·.. DO. PROij::MATk-CAU8E. Defehdant shipped· a car load of crude petroleum In a car which had no valvemgulating the outnow of the '011. The consignee had the car rato .. s1de track, and then, Withfnowle(l.ge that the car was leaking, tourllw otr the ,oU nearplaintitr's mill, the engine room of whlcl;iwas lower than the. track; Owing to the absence of the valve, the 011 ran ontscHapldly that It ttowed Intoplaintitr's engine room, exploded, and, destroyed the mill. Held, that, defendant was not liable therefor, alnce its was not the proximate cause of the injury.
In Errot to ,1:heCircuit Court of the () nited States for the Northern District of Illinois. Action ()n,Wecase by the Goodlander Mill Company against the Standard Oil ;OQffipany. Defendant obtained judgment. Plaintiff . brings
In November, 1887 ,the defendantshipped in .. tank car from Lima. Ohio, to theFt. Scott Ga,s Company, at Ft, ,Scott, Kan., some 6,000 gallons of crude petroleum, dellverable to that company at East St. Louis. The tank car . ha.d .. discharge pIpe in the bottom and about the center of the tank, some ,·four inches in l1i\\meter, and 1 about six Inches below the bottom. The projection threalled to receiyea, heavy cap screw. Within the tank tl1,edischarge pIpe Is fitted with .. heavy valve to prevent the escape of 011. Thevalverefilts· upon a shoulder.ln the upper part of the discharge pipe. Be:low the shoulder.' there are four concaves made In the valve, to permIt the fiow of 011 upon raising the valve. An infiexible iron rod Is a.ttached to the valve, extendingthro;ugh the dome on the top of the tank, and projecting a foot or more above. it. WIthIn the ,tank at the top there is a coiled wire spring, arranged to hold the, rod down. and keep the valve in position, closing the outlet. To discharge the contents of the car through the lower discharge pipe, the cap is unscrewed 'anll the pipe conpling attached. The valve, . by'means of the rod, is then littell. and the oU permitted tofiow through the "()utlet Into the pille" and conducted 'to the reservoir provIded for Its reception. The tank car al,-ived, at In. SCott on the 17th of November. and was receIved by theconalgnee on the next day. The gas company caused the car tb be removed .from the yard of tbe raUroad company, where It was delivered, and to be placed, upon th(lswit<;h track of company located in a,streeta halt mIle aWaY, between the property ()(the gas company and the steam fiour millot the p,lalntlff in error. This was done for the purpose of piping the petroleum containedlrithe'tan1l: into the reservoir of the gas com· pany" located .beyond the m1ll.lUldupoIi., the furtller side of an Intercepting street, The railroad track upon which the. tank car stood WllS three feet d,istant,fpom the (¥rnl\-ce room ot,th.e mm, the latter being f,eet below the level of the ral1road 1;fack at that poInt., The Clp" 'Was plilced 'directly j;jite window of the furnace room of the tollI: On thea.:fternoon of the 18th' of Novellil,ber; and before or at' the time o-f the .removal of the car on that day it was observed by the engineer of the lilwitch engine that the tank was leaking, the oU drIpping at the outlet under the car, and forming a pool upon the ground On the morning of the 19th of November, two servants ot the gas company undertook to discharge the oll into the reservoIr of the gas company, through a pipe laid from the reservoir to the tank car. One of them examined the rod at the top of the car, and reported to the other that it was pushed down, Indicating the valve to be in proper position. The other went under the car with a wrench to remove the cap, and attach the pipe leading to the reservoir. He observed that the cap was loose. and reo