82 FEDERAL REPORTER.
industrious man. The testimony was competent upon the Isso.e of damages. The earning power of the plaintiff was an element in estimating the loss which he had sus,tained, and was likely to sustain in the future, by being incapacitated for labor in consequence of the injuries received. The plaintiff was allowed to testify that he was a married man. While this testimony may not have been strictly competent (Pennsylvania Co. v. Roy, 102 U. S. (59), it was innocuous, the fact having been abundantly proved by evidence which was not objected to. His wife was one of the principal witnesses upon the trial. The other rulings complained of do not merit notice. We find no error in the record, and the judgment is therefore affirmed.
ILLINOIS STEEL CO. v. BUDZISZ et at. (Circuit Court, E. D. Wisconsin. July 30, 1897.)
PUBLIO LANDS-P ATENTS-PRE-EXISTING EQuITIES. .
The validity of patents issued in 1838 for surveyed lands otrered for sale by president's proclamation in 1835 cannot now be questioned, either by the United States or by any person in its right, under equities pre-existing or otherwise.
Action at law by the Illinois Steel Company against John Budzisz and others. On motion to strike out special matter alleged in the answer.
This action Is In ejectment, and the plaintiff moves to. strike out, os Irrelevant, Incompetent, etc., special matter alleged in the answer by way of defense and counterclaim. The matter referred to is voluminous, and sets forth facts and Inferences by way of impeachment of the title of theplaintlf'f, which title the answer asserts is "derived from a purported entry as II. float or floating right," by one Daniel Darnell, at the Green Bay land office, on July 30, 1835, and R purported "patent of the United States, dated the 1st day of September, 1838, to Alexander J. Irwin, assignee," etc., for one tract, and a purported "patent of the United States, dated the 16th day of. Aprll, 1838, to Albert G. Ellis, assignee," etc" for the other tract. The allegations to that end are substantlally 88 follows: (1) That the title to the lands still remains in the United States; (2) that an entry by Claflin and Darnell on July 30, 1835, was void because it "lacked the essential ingredients, both in law and fact, both in the matter of residence and occupation," under tlhe laws applicable thereto; (3) that the tract was not of the description to authorize a float or floating right upon a joint entry by two persons under the act of congress; (4) that the residence of Claflin and Darnell, respectively, as set forth, did not extend to the years 1829 and 1830, and was inconsistent with such right of entry; (5) that the "Indian title to" said tract "was not extinguished" until the ratification of certain treaties referred to, in the years 1831, 1832, 1838, and 1848, and, as to the treaty of 1831, retained the "liberty to hunt and fish on the lands ceded" until surveyed and offered for sale by the president; (6) that the lands were surveyed in 1834, and were first offered for sale by the president by Ws proclamation of May 6, 1835. The answer prays adjudlcat!c)ll of inValidity against both entries and patents.
Van Dyke, Van Dyke & Carter, for plaintiff. Rublee A. Cole, for defendants.
SEAMAN, District Judge. The general rule is undoubted that the defendant in ejectment may a vail himself of any defect in the
ILLINOIS STEEL CO. V. BUDZISZ.
plaIntiff's cnain of title to defeat recovery, when the complaint found. the right of possession solely upon the assertion of title. But u pat· ent of the United States is the highest evidence of title, where the grant originates out of the public domain. The pleader is mistaken in the inference that the ownership of these lands was at any time, in the view of the law, vested in the Indians, or derived through the treaties referred to. There is no recognition by any of the authoritiell of a fee vested in the Indians. Spalding v. Ohandler, 160 U. S. 394, 402, 16 Sup. Ot. 360. As to the lands in Wisconsin, the treaty with Great Britain and the cessions of Massachusetts and Virginia are the legal sources of title in the general government. The treaties with the Indians are regarded only for'rights of occupancy and for resel"Vations from sale. Therefore the doctrine is established that the patent issued by the government is "an invaluable muniment of title and a source of quiet and peace to its possessor." Wright v. Roseberry, 121 U. S.488, 501,7 Sup. Ct. 989. As held under a constant line of decisions, it cannot be impeached, if the lands ·,are patentable, unless there is entire want of jurisdiction in the land department to effect the grant, or conditions are presented to cancel or avoid for fraud or mistake affecting the issue of the patents; and, for the latter grounds, relief can be extended only in favor of the United States, or of the party defrauded or deprived of his rights. Ehrhardt v. Hogaboom, 115 U. S. 67, 5 Sup. Ct. 1157; Vance v. Burbank, 101 U. S. 514; Deweese v. Reinhard, 165 U. S. 386, 17 Sup. Ot. 340. The industry of counsel for the defendants has brought to light reo ports in the land department of proceedings in other cases, presenting a state of facts similar to that set forth in this answer, wherein the ruling was against the entries, and patents were denied. Assuming, for the purposes of this motion, that there was no right of entry at the time of original entry alleged, the answer concedes that these lands were offered for sale by the president's proclamation of May 6, 1835, upon sUl"Vey of 1834, and that the patents were issued, respectively, April 16, 1838, and September 1, 1838. It is not asserted that their validity has ever been questioned since, either by the United States, or by any person in its right, under equities pre-existing or otherwise. The lands became patentable after the survey and proclamation, and were clearly within the jurisdiction of the land department when the patents issued in 1838. All questions as to entry and right to patent were then determinable by that tribunal, and the patents were not void, although they may have been voidable at the proper instance. The doctrine for which the defendants contend would overturn the well-settled rules by which the patent from the government is forti· fied, and finds no sanction in any of the numerous authorities cited by counsel. Independently of the act of congress of March 3, 1891 (26 Stat. 1093), I am clearly of the opinion that the special matter alleged , in the answer and included in the motion states no grounds which are available to these defendants by way of defense. Under the act of limitations referred to, any action by the United States to annul the patent is now barred; and if the defendants were possessed of paramount equities, or were in any manner entitled to avail them. selves of rights existing in the United States, they are equally barred
82 FlllDERAL REPORTER.
by the limitation. The motion is granted, and the matter therein specified will be stricken from the amended anawer and second amended answer.
VANY v. PEIRCE.
(Circuit Court of Appeals, Sixth Circuit. July 6, 1897.) No. 356. 1.
TRIAL-DIRECTING VERDICT FOR DEPENDANT.
A court'should not direct a verdict for defendant where plaintiff's evidence, if standing alone, would sustain a verdict in his favor, althoulh on the whole case the evidence for defendant greatly preponderates.
MASTER AND SERVANT-PERSONAL INJURy-CONTRIBUTORY NEGLIGENCE.
A brakeman cannot reeover for injuries received, while coupling two Pennsylvania freight cars, by being caught between the projecting deadwoods with· which such cars are constructed, on the alleged ground that it was dark, and the oll furni,ehed him for his lantern was of such poor quality that he was unable to see that the Cll.1' he was approaching was a Pennsylvama car, whei1it appears from his own testimony that he must have known that the moving car was a Pennsylvania. car, and that he could see the drawhead of the standing car as he approached, and that the coupling pin was in proper position, but that he did not notice the kind of car it wu.
In Error to the CircuitOourt of the United States for the Western Division of the Northern bistrict of Ohio. '
This is a writ of error to review a judgment of the circuit court of the United States for the Western division. of the Northern district of Ohio. 'l'he plaintiff on the 9th of October, and prior thereto, was employed as a brakeman by Samuel R. Calloway, receiver of the Toledo, St. Louis & Kansas City Railway Com· pany, appointed by the circuit court of the United States for the Northern district of Ohio,. The plaintiff was injured while in such employment, and brought suit in the common pleas court of Lucas county against Calloway as receiver. The suit was removed to the circuit court of the United Smtes on the ground that the cause arose under the laws of the United States. After the removal, Cailoway was succeeded by R.. B. F. Peirce as receiver of the railroad company, the defendant in error here. Peirce answered the petition .of the plaintiff. The case of the plaintiff, as stated in the petition, was as follows: "For a long time prior to the 9th day of October, 1898, plaintUr says he was employed by the sald Bamuel R. Calloway, receiver 8l!!l aforesaid, in the capacity of brakeman upon a local freight train on the said road running between the city of Toledo and the village of Delphos, Ohio, a station on the line of said road. As such brakeman, it was his duty, among other things, to go between the freight CaN in 8ald train for the purpOl3e of coupllng and uncoupling the same. It was the further duty of said receiver to furnish plaintiff with a lantern, and supply the same wIth oil of a good quallty to be burned in said lantern. Said lantern and the light furnished thereby were necessary in the nliht season to enable plaintitr to perform his work in a good and proper manner, and to afford him the means of guarding against injuries to his life and limbs While in the performance of his duties. At about the hour of 7:80 o'clOck, standard time, in the evening of said day, and while it was dark, the plaintiff waa ordered by the conductor in cllarge of said train to couple several freight cars attached to the engine which drew said train to the balance of said train consisting of about 40 cars, whie'll last-named cars were standing on the track of the Mid railroad, a short distance east of said engine, at or near a place known as 'Cloverdale,' a station upon the line of said railroad in Putnam county, Ohio. Plaintitf furth4i'1" says that In compliance with said order he gave a signal to the engineer of sald eIll'lDe to back the said first-named cars for the purpose of being coupled to the balance of the freight train as afocellaid; that said engineer did thereupon cause said caJ:!I to be backed, while the plaintiff awung a lantern for the purpose of lPving
V ANY Y. PEIRCE.
signals to Bald engjneer, which said lantern had been furnished to bim b:v the said receiver, and said ClU'tl so being backed approached said cars 110 standing upon said track. Plalntl1l', on aecount of the darkness which then prevailed, held up said lantern immediately after ilwlnglng the Bame to signal said engineer, III order to see the condition of the cars he was about to couple. But said lantern failed to emit sufficient light to enable him to see the kind of car, and appllances thereon, that was standing still, attached to the main part of said train. P1&intiff further says that the immedl&te cause of the light being poor and InsWDclent to a1rord the necessary light for plaintiff to Bee while In the performance of his said work WM because the li8.1d receiver had wrongfully, carelessly, and negligently failed to furnish him with a lantern containing oil of good quality, but did furnish him with a lantern which contained oil 00' a poor, cheap, and inferior quality, by refUlon of which the light in said lantern became nearly extinguished just after the swinginli' of said lantern, and flilled to give sufficient light, as it lIhould have doni, for plaintiff to see the condition of the carl! which were to be coupled together, and the distance between them. By rea!!011 of the failure of said lantern to furnish light II.!! aforesaid, and while plaintiff was perfonning his duty, the said cars which were being backed were run against the sald cars !!tandlng upon sUch track in such manner as to catch plaintiff'. body between the framework of the cars beIng coupled, which sald carl were of the kind known sa 'Pennsylvania cars,' having ellIs projecting at each end beyond the car's main body; and, by reason of being caught In said projecting frame!! 00' !mid Pennsylvania cars, the plaintiff was squeezed between llald cars, and fell upon said track in 'mch manner that his right leg remained upon one of the rall!! of said track, and the wheels of the said car which was furthest from the engine, and being backed as aforesaid, ran upon and over the plaintiff's said right leg at a point near the knee, crullhlng, mashing, and mangling the same." The answer of Peirce denied that Oalloway, the receiver, was guilty of any negligence which cauled the injuries received by plaint1tf, and averred that the plalntiJr was injured through hi. own fault and negligence. The plalntltf adduced much evidence to show that the 011 furnished by the receiver to his at the time of the accident was defectIve, and that complaints concerning It had been made known to the superior officers working under the receiver. The receiver'll evidence tended to show that the 011 was as good as any signal 011 used by the railroad companies of the country. The learned judge at the circuit court at the close of the evidence examlned the question of what his power was with reference to granting a motion to direct a verdict for the defendant on the ground that the evidence with respect to the defective quality of the oil wall not sufficient to lIUPPOrt 8. verdict. After referring to a decision by the supreme court, he stated his conclusions as follolVs: "Now, I have very fully stated the evidence In that case, to show that the trial judge must not only have determined where the preponderance of the evidence was, but mUlt have considered the evidence tending to show negligence, and that he must have determined that the evidence was of such a character that, it a verdict had been returned for the plalntiIr, it would have been his duty to let it aside. In reaching that conclusion, he must necessarily have weighed the evidence, and considered all the testimony given on the trial, the credibility of the witnll!!lses, ana all the circumstances, and from them all determined whether there was such a sufficiency of testimony as would have I supported a verdict, if rendered. So that I understand the rule to be In the federal cour1:i that at the ltl08e of the evidence It Is a right which the defendant hail to challenge the array of facts by having the trial judge detennine whether or not there fa sufl'lclQllt evidence to authorize the eate to be lubmltted to the jury, and that is a legal right, which the defendant Is entitled to, and that it is the duty of the judge of the court to pass upon that question, and deterxlline whether or not there III such a lufficlency of testimony to sustain a verdict for the plaintiff, and, If not, to direct a verdict for the defendant. Now, I am aware that there are some deelsions of the courts of appeals in !!ome circuits WheN there Is an attempt made to modify this rule. But these two decisions I have cited stand. They never han been modified, never been reversed, never been qualilied in any waf. lilo there can be no mistake about the rule. It tllerefore remains my duty to wbetber or not In this case there is sufficient dence to support a verdict, so that it this ClI.Ile WaB submltted to thill jury U.QOll
82 I'EDERAL REPORTER.
this endenee, and the-y returned a verdict, It would not be the duty ot the court to set that verdlct aside." The then proceeded to consider the evidence, and finding by the great weight testimony that good oil was furnished, and that It had not been Impaired after It came Into the possession ot the company, and that, If a verdict were to be rendered tor plalnt1fl', the court would set aside the verdict as agalnst the weight of the evIdence, he directed a verdict for the defendant. It WIll!! admitted In the case that, on the freight cars of the Pennsylvania Company, sllls extended !rom the end of the car outward just over the drawbar where the coupling Is made, and that, In making a coupling between such cal1l, It was necessary for the brakeman to stoop down and put his hand up from belolV under the 8111s, and above the coupling, to avoid being squeezed by the sills. The evidence ot the plaintiff as to how the accident happened may be seen from the following quotations of his evidence: "Q. Now tell the jury how It happened that you received your Injury at Cloverdale. Just go on, and, In your own words, detail the clrC'Umstances to the jury. A. Well, I got caught between those end sills, making the coupllng,-caught there and mashed when the slack run up at the hind end. Then I dropped· · · Q. Now tell the jUry what the circumstances were connected with your coupling,-how you went at It. A. I was walking along the track, fixing the link, and I walked along until I got close up to the other car, had my link fiXed, swung my lantern- Q. Did you go In on the track to fix the link? A. Yes, sir. Q. In which car? A. In the car that was backing up. · * · Q. Tell how the light was. I mean, was It daylight or darkness at that time? A. It was dark at that time. Q. How dark was. It? A. Well, It was so dark that you could not see, without a light, to do any work.. Q. Did you have any lantern? A. Yes, sir; I had a lantern. * · * Q. Tell the jury what you did when you were at the work of making the coupling In the use of the lantern,-what use, if any, you made of the lantern. A. I swung It out for them to slow up. Q. You was between the cars. How did you swinglt? A. I swung It out by the corner, past the corner, and I went to make the coupling,-held my lantern up. I lifted it up to make the coupling. Q. Lifted It up in front of you? A. Yes, sir; when I ralsed my lantern up the light went down, so you could see nothing by it. Q. What took place then? A. I got caught between these two deadwoods or s111s. Q. What was the cause ot your being caught? A. Well, on account of I did not have any light to see what kind of cars they were. Q. What kind of cars were those between which you were caug-ht? A. They were Pennsylvania cars, both of them. Q. Describe them. A. Well, one of them was a refrigerator car. The other was just a common box car. Q. How are those cars constructed? A. They have a sill-Qh, perhaps, a foot thIck-that runs out past the end ot the car. Each one of them had this s111. Q. These sills extend out beyond the end of the car? A. Yes, sir. Q. Did they extend a foot wIde clear across the end? .A. They are not quite so wide. They kind of narrow off It little at the end. Q. Is this construction pecullar to Penns;ylvania cars? A. Yes, sir; they are all that way, I think. Q. That construction-this wide projection the whole width of the end of the car-ls made for what purpose? A. For end brakes. Q. To allow a man to stand between the cars and twist the brakes? A. Yes, sir. Q. And those cars the brake i8 on the end Instead of on top? A.. On the end of the car. Q. Now, what is the fact with reference to the space between these projecting sills ou these Pennsylvania cars? A. Well, I should think, up towards the middle, they would not be more than four or five Inches. Q. The ilpace gradually widenil out from the center? A. Yes, sir. Q. How are the couplings made on these caril,-this kind of cars,-Qrdillilrlly? A. Well, they are mostly made by stooping down and making them from the bottom. * '" * Q. You were standing sideways towards the car? A. Yes, sir. Q. Your arms and body crosswise on the track? A. Yes, sir. Q. Your back was towards the car that was backing up? A. Yes, sir. Q. Was you walking along with it? A. I had been In th'e center of the track, fiXing the link. · * · Q. What took place atter you was caught by the car and squeezed? A. Well, the slack run out and let me drop down. My body and all fell out, but one leg that was across the track. Q. W'hat took place then? A. They run over it. '.rwo trucks, two wheels, run over It. Q. How much light did the lantern give after you had swung It m there making the coupling? A.. It did not give any. I could hardly see it. Q.
VA-NY V. PEIRCE.
swung the lantern across the track for them to stop." On cross-examination the plaintiff testified that he had given the signal to the engineer to back down to make the coupling after having kicked a fiat car onto the side track. The counsel then put the question: "Q. There was nothing the matter with the lantern, so far as you could see, at that time? A. Nothing, only it burned a little dIm once in a while. Q. How soon after you got the lantern did you notice it burned dim? A. I did not use it only about ten minutes. Q. How soon after you got it did you notice it burned dim? A. Just about the time I was making the coupling. Q. Then the lantern burned all right when you got it? A. Yes, sir. Q. It burned all right when you gave the signal to the engineer to back down? A. It would kind of die out when you would swIng it. Q. How soon did you notice that it would die down when you would swing It? A. I did not notice it until I swung It out for them to stop. Q. Then it worked all right when you gave them the signal to back up, didn't it? A. Well, I would not say for that, because I hardly ever looked at my lamp. Q. From the fact that you did not notice anything wrong, does not that satisfy you that It worked all right? A. I think the conductor gave the signal to back down. Q. Didn't you give the signal? A. I do not think I did. · * · Q. You could see up on the switch, couldn't you? A. I could see enough to throw the switch. Q. You could see to uncouple the fiat car? A. Didn't have to see much to do that. Q. You could see enough to do that,-is It not a fact you could see enough to do that? A. Well, it was not SO awful dark. A man could see to do that without a lantern,-to pull a pin. Q. How long was It between the time you uncoupled the fiat car on the switch to the time you attempted to make the coupling on the side track to couple up the train? A. About fifteen minutes. Q. It took you fifteen minutes from the time you went down there to go down and make this couplIng, did it? A. Yes, sir; it was all of fifteen minutes. Q. And you could see, couldn't you, to throw the switch and lock the switch? A. A man could see that without any light. Q. You could see to arrange the pin on that refrigerator car. you were walking in front of? A. I could see the link and pin. It was fast In the drawbar head. I had to loosen it. Q. You could see that drawbar head? A. Yes, sir. Q. And the link and pin? A. Yes, sir. Q. Your lantern gave light enough for that, did It? A. You could almost do that In the dark, without any light. Q. You could do that with your eyes, shut? A. Almost; yes, sir. Q. Well, now the truth Is, Mr. Vany, you did not l06k af'that very carefully,-you did not think it very necessarY,-did you? A. I fixed it. I loosened It. Q. You did that without paying much attention, didn't you? A. Sure, it had to be done, or you couid not make the coupling. Q. You did that without looking at it very carefUlly? A. I seen it was all right. Q. Your Ian· tern gave light enough to enable you to see that? A. You couid tell that without looking much. * * · I done it without looking. I just walked along there, and looked where I was walking, and stopped and took the pin and loosened it. · * · Q. Well, now, as you went in bet\veen the cars there, where were you when you went behind the refrigerator car, that was backing down to arrange the link and pin,-how far up the track? A. I was four or five car lengths from the hind cut, standing still. Q. Was you walking all of that distance on the track in front of that car? A. Most all the way. Could not fix it either when it was backing up. Q. How far were you from the hind cut of that train that was standing still when you gave the signal to stop? A. I was just about to the cut. I walked on ahead of the car backing up after I fixed the link. Q. That Is, you walked faster than the engine moved? A. Yes, sir; they were going slow. Q. You walked faster than the engine moved, went up, and stood at the stationary car, and waited for them to back down? A. I walked up to about four or five feet of It. Q. You walked up to within four or five feet of the stationary cars, and waited for the moving train to come down? A. Yes, sir; the train was not very far back of me. It was moving right aiong. Q. But you moved faster than the train behind you did,-You moved faster than the train dld,-and went up to the stationary cars? A. No, sir; I did not go up to
DId It go clear out, or not? A. I do not know whether It went clear out, 01' not. I could not tell. Q. Were you able to see the kind of cars that were coming together? A. No, sir. Q. You swung the lantern out how long before you was caught and squeezed? A. Yes, sir. Q. How long before you was caught and squeezed,-'.immediately? A. Just a little bit before. They were backing up. I
them. Q. I mean within foul' or five feet of them? A. They were only three or four feet from me when I stopped. Q. You went up to within three or foul' feet of the stationary car'S. stopped. and waited for the moving train to come down, did you ? A. I stepped on between the track. Q. That is, outside of the rail? A. Yes, sir. Q. Did you examine this car to see wbat the condition of the coupler was? A. No. sir. Q. You did not look at that at all? A. No. sir. Q. Did you stand with your back towards the stationary cars. or towards the moving train? A. Towards the moving train. Q. With your back towards the moving train? A. Yes, sir. Q. Then as you stood there, waiting for that train to come down, you stood with your face towards these stationary cars,-You did not look to see what condition the coupler was in? A. I was outside. Q. You did not look to see, did you? A. Well, I seen the link and pin was set in the drawbar head. Q. You could see that, could you? A. Yes, sir. Q. You mean, by 'the pin was set,' tbat the pin was set up in the top bole in the coupler, ready to receive the link? A. Yes, sir. Q. You could see that, could you? A. Yes, sir. Q. So there was nothing else for you to do? A. To make the coupling. Q. Until the train come up to that stationary car. you did no work; it was all right? A. There was no work to do. Q. Could you see that this was a Penru;ylvania car? A. You could not tell well. Q. Could you see these bumpers-deadwoods, as they are called-on that car? A. You could if you would walk up and notice. Standing in front, I do not suppose you could tell. Q. You were outside? A. Yes. sir; off on one side. Q. Do you mean you could see this coupling pin? A. I could see that walking along. Q. It was light enough for you to see that as you walked along the track? A. My lantern gave light enough to walk by. Q. Your lantern gave light enough to enable you to see that as you walked along the track, did it? A. I do not know whether I seen it, or whether I walked up to the car. I think. though, that- I think I walked up to the car,-up to the drawbar. Q. You walked up to the drawbar of the stationary car? A. I am not sure. It has been so long I have almost forgotten. Q. What Is your best recollection now as to whether you did walk up to that stationary car? A. Well, 1 could not say. Q. Well, did you see the coupling pin standing in the head of the drawbar, ready to make the coupling? You did see that, didn't you? A. I said I seen it, but I could not say whether I did or not. It has been so long ago I have forgotten the most of it. Q. You saw It, didn't you? A. I said I saw it. Q. You are telling the truth, are you not? A. I am supposed to. A man can't remember so long as that. Q. Will you tell the jury why, if you could see that coupling pin, that you could not see these deadwoods you spoke of, which are perhaps eight or ten times as large? A. Those kind of cal'S are something we had not been in the habit of using or hauling many of them,-would not pay any'attention to it, would not notice them. Q. Because they were unusual, you would not pay any attention to them? A. You would not just think of It. Q. Don't you know, Mr. Vany, that Is just the contrary? When you get an unusual car, you do pay attention to it. That is a thing that attracts your attentIon. A. Not so far as making couplings. Q. If you had a strange car, the lil;:e of which you had neyer seen before, you would not pay any attention to that? A. I suppose a man would pay attention to it. Q. )low, this deadwood as it Is called. on the Pennsylvania cars, is a large timber structure out above the drawbal"? A. I think it is right over the top of the drawbar. Q. It is a large timber? A. Yes. sir. Q. How long is it on each side of the drawbar? A. The full length of the cal'. Q. How fuick is it? A. I could not say. Q. About how thick? A. I CQuld not say. Q. SiX, eight. or ten inches? A. Which way do you mean? Q. How deep? A. I do not know just how wide It Is. Q. It is a large timber? A. Yes. sir; it Is a square piece of timber. Q. It is at least as large as the drawbar. is it not? A. It is as large as the drawbar if it was doubled up. * · *" Again on cross-examination the plaintiff was asked: "Q. You swore that the lantern gave so llttle light you could not see what kind of a car it was? A. I did not notice what kind of a car It was. Q. Then It was not that the lantern gave so little light you could not see, but that you did not notice? You could not see what kind of a car it was, but that you did not notice? A. You could not see what kind of a car it was from the end, I suppose, unless you took a little tIme to notice it. · * * Q. Did the lantern give you sufficient light to enable you to see the appllances on this car if you had gone up to it and looked? A. Might have took time to raise it up, without raising it
VANY V. PEIRCE.
op- Q. That is, it yon ha1i taken time you could haTe seen it? A. Yes, sir. Q. You did not look to see what kind of appliances were there? A. I did not have time. Q. You did not look, did you? A. I could not have seen If I had looked after I got up there. Q; Answer my question. A. That is as near as I can answer It. · · ." On re-examination he said: "Q. How far were the two cars apart at the time you stepped In? A. About four or five car lengths. Q. You walked along with the moving car, shaking the link and testing It? A. The link was fast In the drawbar. Q. Did you loosen It? A. I took the pin, and drove It, and pounded It up, and loosened it. Q. Was the car coming back while you were doing this? A. Yes, sir. Q. When did you give the signal to the engineer, now, where you swung your lantern out? A. From between the cars. Q. At what place,-after you had loosened the link, or before? A. After I bad loosened the link. Q. Were the cars close together, or far apart, after you gave this signal to the engineer? A. Right close together. Q. How far apart were the cars at the time you swung the lantern out to give the signal to the engineer,-about, it you know or are able to state? A. About four feetj I should jUdge,-four or five feet. Q. Immediately after swinging the lantern is when you raised It up, I understand you to say, to look? A. Yes, sir. · · · Q. They were moving so slOW you did not think It necessary to give any signal to stop until they were within four or five feet of the stationary car? A. They were not. Q. You did not run ahead and make any examination of the ltatlonary car? A. No, sir. Q. Before you gave the signal to stop? A. No, sir; I did not think I had time to run ahead." On re-examination he sald: "Q. When you say you did not have time to examine the cars, I will ask yon whether you refer to having time before you commenced to make the coupling, or that you did not have time te observe after you held your light up? A. I did not have time when I held my light up, or before, either. Q. If your light had been burning, would you have had time to have seen? A. Yes, sir; I could have stepped right In there before they would have caught me, If I had had the light to see. They come out towards the end. They won't pinch a man up towards the ends. They are kind of round on the ends, on the corner. A man can stand way out and make a coupling, and they won't get hurt; but, It he standll op straight, they will pinch him." The maln exception and the chief assignment of error were to the COurt'1 In· muctlon to the jury to return a verdict for the defendant.
Hurd, Brumback & Thatcher, for plaintiff. Clarence Brown, for defendant. Before TAFl' and LURTON, Circuit Judges, and HAIDrOND, J. TAFT, Circuit Judge (after stating the facts as above). Upon the issue as to whether the oil was defective, the court found that there was not sufficient evidence to go to the jury, and therefore directed a verdict for the defendant. In this we think the court erred. In the remarks with which the court prefaced its charge to the jury to bring in a verdict for the defendant, the court proceeded on the theory that in the federal courts, in every case in which the evidence, taken as a whole, is such that, if a verdict should be rendered in favor of one party, the court would feel obliged to set it aside on the ground that it is against the weight of the evidence, it is the duty of the court to direct a verdict in favor of the party adducing the stronger proof. We have examined this question at great length in the well-considered case of Railway Co. v. Lowery, 43 U. S. App. 408, 20 C. C. A. 596, and 74 Fed. 463. In that case the opinion of the court, delivered by Judge Lurton, shows the clear distinction between the function which the court has to discharge after a verdict has been rendered, in de-
termining whether it is so much against the weight of the evidence as to require it to be set aside, and the function which it discharges in deciding, upon a motion to direct a verdict, whether the evidence supporting the issue upon one side is of such an inconsequential character that in law it cannot support a verdict. In the case at bar the court proceeded to weigh the evidence on both sides, and, finding that the evidence tending to show that the oil was of good character so far outweighed the evidence to the contrary that he would be obliged to set aside a verdict based on the view that the oil was defective, he direct· ed a verdict for the defendant. This was beyond the power of the court. If no evidence as to the character of the oil had been introduced by the defendant company, the evidenee for the plaintiff was certainly strong enough to support a verdict based on the theory that the oil was defective. But, though the court reached the conclusion to direct the verdict on an erroneous ground, we are of opinion that the conclusion can be supported on another ground, and that the direction to find a verdict for the defendant was right. It seems to us clear, from the testimony of the plaintiff himself as to how the accident occurred, that he was guilty of negligence causing the accident, and this without respect to the character of the oil. It is perfectly evident from what he states that he knew that the moving car to be coupled was a Pennsylvania car. If he did not know it, he ought to have known it, because he fixed the pin in the drawhead some time before the two cars came to· gether, and the sill at the end of the car, the presence of which reo quired peculiar care in coupling, was just above the drawhead, and so near to it that it was impossible that he did not see the sill if he saw the drawhead as he said he did. Indeed, he does not deny that he knew that the moving car was a Pennsylvania car with a sill. He also states that he could see and did see the drawhead of the stationary car, and could see that the link and pin were properly adjusted in it to make the coupling. If he could see that, as he testifies that he did, iUs impossible to explain, except on the theory of negligence. and inattention, why he did not see the sill upon that car, for the one was so near the other that with the slightest attention it could not have escaped him. His real explanation of the fact that he did not see the sills was that he did not notice them. Failure to notice a fact so important in determining his proper course, when he had full opportunity to do so, was gross negligence. In view of his admissions his statement that he did not have time to see the sills before the coming together of the cars is certainly not more than a scintilla of evidence to support his case, which, in a federal court, need not submitted to a jury. The action of the court in directing a verdict was right, and the judgment is affirmed.
DUN V. MAIER.
(ClrcuJt Court of Appeals, Fifth CircuL. June 16, 1897.)
LIBEL-PLEADING-WHEN SPECIAL DAMAGES MUST BE ALLEGED.
Where words pUblished are not libelous per se, special damages must be alleged.
SAME-WORDS NOT ACTIONABLE.
A mercantile agency, und the head of "Record Items," In the Weekly r Change Sheet furnished to its SUbscribers, published the following words: "Atlanta: Maier & Berkele: M. Berkele gives R. E. deeds, $4,100. Jewelry;" meaning thereby that sald firm was in the jewelry business, and that the Berkele thereof had conveyed to others real estate to the value of $4,100. Bela, that the words were not susceptible of the construction placed on them by an Innujmdo charging their meaning to be that the conveyance had diminIshed to that extent the property accessible to creditors of said firm, and were not actionable per se.
In Error to the Circuit Court of the United States for the North· ern District of Georgia.
ThIs suit was brought by Maler & Berkele, a mercantile firm composed of Herman A. Maier and John Berkele, who are defendants in error, against R. G. Dun & Co.. a firm composed of Robert G. Dun, Arthur J. King, and Robert D. Douglass, who are plaintiffs in error, to recover damages for alleged libelous matter published by the latter drm concerning the said John Berkele. The declaration filed by the defendants In error set forth the cause of action in the following language: "(2) Your petitioners were on January 31, 1894, and for a considerable period theretofore had been, and now are, merchants engaged In conducting a wholesale and retail jewelry business In the city of Atlanta and said state, and doing an extensive trade in that line. (3) Your petitioners were then and are now using in the purchase of goods for their business, and raising money for its need, a large mercantile credit, to which they were and are entitled by virtue of their solvency and prompt and honest dealing with their creditors. (4) The defendants were on the day and year aforesaid, and had been continuously for many years before, conducting what Is commonly known as a 'commercial agency,' the design and actual use of which is to collect and disseminate among merchants, bankers, and others interested in the matter, throughout the United States, information respecting the commercial standing and credit of those engaged in any department of trade requiring the use of credit. This information is communicated to those only who contract for the same with said defendants, and is sent out, among other means, In the form of written or printed reports, and a publication issued weekly, and entitled, 'The Mercantile Agency Weekly Change Sheet.' The defendants had then a great number of subscribers for their reports and publications in all the markets of this country. (5) On the day a,nd year aforesaid the defendants had a branch office In the city of Atlanta and said state, and were engaged in sending out from said office such reports as are in the preceding paragraph described, and the publication therein mentioned for the purposes therein specified. (6) The defendants on the day and year aforesaid, and in the city aforesaid, Issued and circulated among its subscribers a copy of the said publication, wherein they, for the purpose of injuring the commercial credit of your petitioners, and being moved thereto by malice against them, inserted, under the head of 'Record Items,' in one column of said publlcation, the following false statement as to your petitioners, to wit: 'Atlanta: Maler & Berkele: M. Berkele gives R. E. deeds, $4,100. Jewelry;' meaning thereby that said firm was In the jewelry business, and that the Berkele thereof had conveyed to others real estate belonging to him of the value of $4,100, and fuus diminished accessible to creditors of said drm for the payment to such an extent the of debts due them. (7) Durmg the year 1893 your petitioners, with others In