latent;' .but the. corporation: is 'l"equiredtosearch for&'uch defects, 'andto remove the snow fl'OIh'them, so that they will become patent again before the servantilil to notice them. I am unable to assenttothis. proposition; In my opinion, it is not the law. Nor 'can 1 bring myself to concur in the theory that because the court below, in: another portion of the charge, stated the converse of this thelaw prejudice could have resulted:tothe plaintiff .in: errQrfrOm thjs erroneous declaration. The presumption is that errol' produces prejudice. It is only when it appears so clear as to be beyond doubt that the el'J."()l' complained of neitheE did prejudice, nor could have prejudiced the party against whom it was made, that the 'rule that error without prejudice is no gro'lrt,ld f(},r reversal is justly appliGitble. Deery v. Cray, 5 Wall. 795, 808; Gihnh v. Rigley, 110 U.S. 4,7, 50, 3 Sup. Ct. 471. The court be19W,in its charge, gave the :jury a correct and an erroneous instruction upon the same subject. T am unable to discover from the .record whether, the jury govel'Il,ed in their action by the former or the ,latter, anq in my 9pinioo,tb,e. judgment should be reversed, and a pew trial Qroered.
NORTHERN PAC. R. CO.v.MORTENSON.
(Circuit Court of APpeals, ElghtllCh'cult. ":'1,';" .. i.' , , ,
MASTEn AND SIllRV'A,liT-IN.tuRI'ES ToRAILWAy BRAJrEMAN OVluUtIUD BEAYSLPROVINCE OF JURY.
Whe,ieabrakeman, standing on the running board of a furniture car. fs hlg)ler than box Cars, in the discharge of his duty, was struck by the.overhea:d tie beams of a bridge which the train was crossing, held, that It",aa the province of'tI'le jUry to Bay whether the company was negligent ·In maintaining a bridge having' such low beams, without giving warnlug by telltales or otherwise. The brakeman having crol3sed the bridge several times standing on top of box cars, held, further, that it was a question for the jury whether he was.. of" negllgenqe In not ascertaining, by measurement ,Ol" accurate 9bservatioQ.. that he could not safely pass while standIng on the running board of a furniture car.
'FIXING DATE BY MEMORANDUM ERROR WITHOUT PREJUDtCE. RIGHT OF INSPECTION-
SAME-CONTRIBUTORY NEGLrGENCE-PROVINCE 011' JURY.
In . testifying as. to the length of time. Qe .was in defendant's ill. date of entering the service by a m. emorandum, but the to . permit defendant, to .Inspect the memorandum. Held, that this was error, but, the length of his service .t>eing fUlly established by the error was wIthout prejudice. emPloy.,
In Error to the Circuit Court of the United States for the District -of Minnesota. ' This was an action by Andrew Mortenson against the Northern Company. to recover damages for personal injuries. Verdict 'and judgment were given for plaintiff, and defendant sued -out this !Writ of e r r o r . ' ,
PAC. R. CO. II. MORTENSON.
O. D. O'Brien (J. Mitchell, Jr., Tilden R. Sebnes, and T. D. O'Brien, on the brief), for plaintiff in error. O. A. Severance (W. S. McClenahan, W. A. Fleming, O. K. Davis, and F. B. Kellogg, on the brief), for defendant in error. Before CALDWELL and SANBORN, Circuit Judges. OALDWELL, Oircuit Judge. The defendant in error was in the employ of the plaintiff in error as head brakeman on a freight train running between Brainerd, Minn., and Fargo, N. D. In making this trip the train crossed a bridge having overhead tie beams. This bridge was within the limits of the company's yards at Fargo. The duties of the defendant in error required him to be upon the top of his train while passing through the Fargo yards and over this bridge. His usual position was on top of the second or third car from the· engine, and he had to stand on the running board of the car in a position that would enable him to receive the signals of the conductor and rear brakeman, and transmit them to tbe"engineer.On the 22d of March, 1890, while standing on the running board of a furniture car in the proper position to receive and transmit the signals, and in the attitude of doing so, as the train passed over the bridge, he was struck on the head by one of the overhead timbers of the bridge, and received the injuries for wbich this suit was brought. Furniture and refrigerator cars, which are in common use on the defendant's road, are about 2! feet bigher than ordinary box cars. The defendant in error had crossed the bridge in safety a dozen times or more wbile standing on the top of the box cars. The principal questions discussed by counsel are: (1) Was it negligence for the company to maintain a bridge having overhead tie beams too low to admit of the safe passage of a brakem\Ln standing on the running board of a furniture car, in the discharge of his appropriate duties, when no warning of the dangerous character of the bridge was given by telltales or otherwise? (2) Was the brakeman guilty of contributory negligence in not ascertaining, by measurement or accurate observation, that he could not pass safely under the overhead beams of the bridge while standing on the running board of a furniture car? Under the evidence in this case, these were not questions of law, but questions of fact for the jury. Under proper instructions, the jury found both of these issues against the plaintiff in error, and we cannot disturb the finding. On the evidence, the case was plainly one for the jury. Rail· way 00. v. Ellis, 10 U. S. App. 640, 4 O. O. A. 454, and 54 Fed. 481; Railroad Co. v. Foley, 10 U. S.App. 537, 3 C. O. A. 589, and 53 Fed. 459; Railroad Co. v. Carpenter, 12 U. S. App. 392, 5 C. C. A. 551, and 56 Fed. 451 ; Dorsey v. Con$1:ruction Co., 42 Wis. 583. It is claimed that the defendant in error had notice in fact that the tie beams across the top of the bridge were too "low to admit the safe passage of a brakeman standing on the top of a furniture car; but the defendant in error denies this, and the jury found this issue in his favor.
, 'We defendant in errorwaa examined touching the length of time purpose of he had been in the service of the campauy, and, for fixing the date he entered the service,he referred to a written memorandum in his possessMn:. After, testifying from this memorandum, the court refused to permit the plaintiff in error to inspect the same. This was error, but it was error without prejudice. The length of time the defendant in error had been in the service, if material, was fully established by all the evidence to be that stated by him. The judgment of the circuit court is affirmed.
September 10, 1894.)
CHICAGO, R. I. & P. RY.
(Circuit Court of Appeals, Eighth Oircuit.
ApPEAL-REVIEW-WEIGHT OF EvIDENCE.
In an action for personal injuries, the appellate court wlll not weigh contUctingevidence, pass upon the veracity O'f witnesses, and determine the case according to what '. it thinks to be the weight of the evidence appearing in the record, but will resolve all conflict in the evidence in favor of the party for whom the verdict was rendered. A railroad company is bound, independently of statute, to take reasonable and proper means of notifying the public of the apprO'ach of its traiils to a public after night; and. it is a breach of this duty to back a train of tIat cars over a crossing in the suburbs of a city, without having on it any brakeman, or any light or other signal of its approach.
RAILROAD COMPANIES-AcCIDENT AT CROSSING-NEGLIGENCE.
BAME,-DUTY OF TRAVELER,-CONTRIBUTORY NEGLIGENCE.
Ope who, on approaching' the crossing, ·looks and listens, but hears nothing except a locomotive, which is so far off that he can easily pass before it, is not negligent in failing to surmise that the company would attempt to back a train of fiat cars, which makes little noise, over the ,cr9Ssing, on a dark night, without any lights O'r signal to warn the public.
In Error to the Oircuit Oourt of the United States for the Western District of Missouri. ' , Stephen S. Brown (J. E. Dolman, on the brief), for plaintiff in error. William Henry and W. H. Haynes, for defendant in error. Before OALDWELL -and SANBORN, Oircuit Judges, andTHAYER, District Judge.
OALDWELL, Oircuit Judge. This is an action brought by James M. Sharp, the defendant in error, against the Chicago, Rock Island &:Pacific Railway Company, the plaintiff in error, to recover damages for a personal injury received ata ra.ilroad crossing. The plaintiff recovered judgment below, and the-defendant sued out this writ @f,-erri:lr. In itbill, as inmost cases' of this character, the first assignment error is that the cou:rt.erred in not directing a verdict for the defendant the whole evidence; and in this case, as has frequently occurred in other cases of like character, we are pressed
CHIC4,GO, B. I. &: P. BY. CO. V. SHARP.
to weigh conflicting evidence, pass upon the veracity of the witnesses, and determine the case acoording to what we think is the weight of evidence appearing in the record. To do these things would be a flagrant invasion of the functions of the jury, and a denial to the plaintiff of his constitutional. right to have the facts of his case tried by a jury. Railroad Co. v. Teeter (decided by this court at the present term) 63 Fed. 527; Railroad Co. v. MortenS'On (decided by this court at the present term) Id. 530; Railroad Co. v. Ellis, 10 U. S. App. 640, 4 C. C. A. 454, and 54 Fed. 481; Railroad Co. v. Kelley, 10 U. S. App. 537, 3 C. C. A. 589, and 53 Fed. 459. The following is a summary <1f the material facts which the plaintiff's testimony tended to establish: The defendant's road crosses on the level the public highway leading south from the dty of Maysville, Mo., at its statton near the city where there afe three tracks, known as the "main track," the "passing track," and the "stock track," and two switches. At the point of crossing, the railroad runs east and west, and the highway north and south, and the station stands on the north side of the railroad track andwest line of the highway. At 9 o'clock at night, on the 10th of November, 1892, the plaintiff, riding in a cart (which, on the smooth dirt road, made no noise) drawn by one horse, going south, approached this crossing. The night was very dark. When within 20 or 30 feet of the crossing, he looked and listened. Looking west, he saw a switch light 500 or 600 feet west of the crossing; and, looking east, he saw a switch light 364 feet east of the crossing, and a little way beyond this he saw the smoke of a locomotive, but could not tell certainly whether it was moving or not, or, if moving, in what direction, though he thought it might be moving towards the crossing. He heard no sound but the puffing of the locomotive. The bell was not ringing and the whistle was not blowing. There' was no flagman at the stati,()D, and no light there or elsewhere between the two switch lights, and nothing could be seen on the track between the locomotive and the crossing, and, satisfied that he could cross the track in safety before the locomotive could reach the crossing, even if it was coming towards him, he started to do so. His horse crossed the track in safety, but the hind end of his cart was struck by a moving fiat car, and he received the injuries complained of. It turned out that the locomotive was pushing three or more flat cars towards the crossing, which, owing to the darkness, the plaintiff oould not see, and which he did not hear, and which had no light or flagman or other agency on them to give warning of their approach. There was conflict in the testimony as to some of these facts, but, when. an appellate court is asked to set aside the verdict of a jury in a common-law acti-on upon the facts, all conflict in the evidence must be resolved in favor of the party in whose favor the verdict was rendered. In other words, if, by giving credit to the plaintiff's evidence, and discrediting th'at of the defendant, the plaintiff's case .is made out, verdict must stand. Railroad Co. v. Conger, 5 C. O. A.411, 56 Fed. 20; Railroad Co. v. Teeter, 63 Fed. 527; Railway 00. v.Lowell, 151 U. S. 209, 14 Sup.Ot. 281. The Missouri
statuter (&v..St. .1889j §. 2608) requires' the bell· to be rung or the whistle.-eo at all publiccl'ossings, Rnd a failure to complywitb;the statute is l!le; . Crumpley v. Railroad 00.,98 Mo.34, 11 S.·W. 244. But the, negligence of the company doesnQtr rest alone on the statute. Independently ·of the statute, in cars·and engines over the public crossing after dark, thecornpany was 'bound to . take reasonable and pl'opel' means to notify the public ·()fthe approach of its cars. In this case no precilutionsrwhateiTel' were taken. . But, although the company may have been guilty of negligence. the pJIUQ'ti,ffcannot'recover unle$ that negligence was the proximate caue: of the injury, and the plttintiff himself was' free from uegligen'te. The obligations, rights, and duties of railrOad comvan,ies ,and tl'aveleraat highway crossings are mutual and reciprocal. .NQ:greater degree of care iSl'equired of the one than of the other. Improvement 00. v.Stead, 95 U.S; 161, 165. As was well said by Judge Thayer in deUvering the opinion of the court in the case of Railway .Co., v. McOlurg, 8 O. O. AJ,'S22,59 Fed. 860: "A person may reasotlalbly.be expected and· required to take as great precaution to aiToid ge'tting··hurtas to take to avoid injuring him." !J.1hese rules. were clearIY'alld fully stated to the jury in the charge ot the learned court that tried the cause. Thejury weJ:'e repeatedly tOld that, in approaching' the track, it '\Vas the plaintiff's duty to use his senses, and to look and listen for approaching trains, and, if necessary, to stop for thatjmrpose, and that, in approaching and· crossing the track, he waS .:required· to exercise that degree of care that a. prudent and careful man would exereise under like circumstances. Was' there evideneefrom which the jury might infer the pla.iJlt;iff did 'observe these l"eq\ti,rements? He l,ooked and listenedas .he approached the crossing, and saw and heard nothing but the locomotive; .,He estimated,andestimated correctly, that he could . cross the track many· feet' aheM of that. The fiat cars being pushed ahead of the locomotive he did not hear, and could notiree onraccount, of the We are unwilling to lay it down a,s a wle of law that the plaintiff was negligent in not anticipating.theparticular aet of negligence of the defendant which occasioned the aceident HutchinSon v. Railway 00., 32 Minn. 21 N.. Wr212; Weller v. Railway 00; (Mo. Sup.) 23S.W. 1061, affirmed,bn rehearing. 25S.W.. 532.. The jury, by their verdict, have said ,that the .plaintiff was not.required to conjecture or SUI'mise that ,the ,company would attettJ.pt to back a: train of fiat cars, which made little or no noise, over a public crossing, in the suburbs of a city, ooa darknight,withouta,brakemanor light or other signal on them to warn the public of their coming; and we concur in that conclusion. ,Where the:negligenoo of the railroad company, which is the proximate cause of .the injury, is.· clearly established, in order·todefeata,recoverY, as a: matter of law, on the ground of. ctintributory negligence, the defense must be clearly fuade out. R/tilway 00. v. Lowell, 151 U. S.209;' 14 Sup. Ot. 281. If inferences o1;herthan that ofcontribuoory may be fairly dl'awn from aU the evidence, and facts shown to 'eXist; then the question is one
LICHTY V. LEWIS.
of fact for the jury, whose verdict must stand. Bluedorn v. Railway Co. (Mo. Sup.) 18 S. W. 1103; Weller v. Railway Co. (Mo. Sup.) 23 8. W. 1061. The charge of the court stated the law correctly applicable to the facts of the case. It was as favorable to the defendant as it had any right to ask. The judgment of the circuit court is affirmed.
LICHTY et ux. v. LEWIS et ux. (Circuit Court, D. Washington, N. D.
JUDGMENT-RES JUDICATA-COMMUKITY PROPERTY.
August 31, 1894.)
A judgment In an action against a husband only, to determine adverse claims to land, Is a bar to a subsequent action by such husband and his wife against the plaintiff In the former action, Involving the same questions adjudicated in the first action, though the land is community property.
This was an action of ejectment by Harvey 1\1. Lichty and wife against Joseph R. Lewis and wife. Heard on demurrer to answer. Demurrer overruled. Parsons, Rudkin & Saylor, for plaintiffs. Whitson & Parker, Harold Preston, and J. R. Lewis, for defendants. HANFORD, District Judge (orally). This is an action of ejectment by Harvey M. Lichty· and wife against the defendants, J. R. Lewis and wife, to determine adverse claims to real estate situated in Yakima county, in this state. Plaintiffs claim a community property interest, which the defendants dispute. On that ground they seek a judgnient establishing against the defendants the validity of their title and rights as cotenants. The answer contains a plea setting forth that in a suit between Joseph R. Lewis and Harvey M. Lichty all the questions involved in this case were adjudicated by the superior court for Yakima county, and that decision has been affirmed by the supreme court of this state. Lewis v. Lichty, 3 Wash. 213, 28 Pac. 356. Plaintiffs demurred to said plea on the ground that a judgment between Harvey M. Lichty and Joseph R. Lewis is not binding as an estoppel against the same Harvey M. Lichty and his wife. The plaintiffs' positioo is that, the parties being different, and this being community property, no court would have jurisdiction to determine the questions involved without the presence as parties of the wives as well as the husbands interested. It is my opinion that, the state court having considered and passed upon the question as to whether Harvey M. Lichty had any title to the property, and having adjudged that his grantors had been divested of their title, so that their quitclaim deeds to him, constituting the basis of his claims, are for that reason invalid, its decision is determinative of the whole matter. I do not think :that the same question can be again litigated without establishing a principle which would be pernicious. To allow a married man to come into a court of competent jurisdiction and submit a contro-