BARRIS V. UNION PACIFICR. 00.
591
The debt has matured, the premises have been sold under 8 foreclosure decree, and deeded to defendants.' The mortgage was made by persons apparently, or supposed by defendants to be, of sound mind. There is no power in the court to restore defendants totlieircondi, tion before they parted with their property to Daly. Let decree be entered dismissinR the bill of complaint for want of equity, and for payment by complainant of the costs of tliesuit.
HARRIs t1. UNION PAOIFIC
R. Co.
(Oircuit oourt, D. Colorado. June, 1882.) L 2. NEGLIGENCE DEFINED.
Negligence is the want ofthat care and prudence which a man ot ordinary intelligence would exercise under aU the circumstances of the case.
B.um-BURDEN OF PROOF-PROXIMATE CAUSE.
Negligence is a question of fl4l,t,to be found by the jury, and in to reo .cover, the plainti1f must establish by a preponderance of proof that the defendent was guilty of negligence, and that the injuty complained of was tile natural and ordinary result of 8uch negligence, and,' that the negligence was the proximate cause of the injury which a reaso,nably prudent and cautious person ought to have apprehended might resuU ,fr-om the act which he did. While a railroad company is bound to use great care in order to keep!its tracks clear for the sllJety of its passengers, and for Hs employes, it is not ,reo sponsible for the unlawful act of some third party in' plaQing upQn the track without its knowledge or consent, unless it beiDa case where it h8d by its conduct done some act which it m,ight reasonably have anticipated would lead to the placing of the obstruction upon the track.
3.
SAME-RAILROAD COMPANY TO' KEEP TRACKS (''LEAR.
4. SAME-MEASURE OF DAMAGES.
In determining the amount of damages, the jury should consider the pain and " suffering to which plaintiff has been subjected, both mental and ph,rsical, the loss of time and 1088 of wages which has resulted from his injury,' the nature and extent of physical injuries, their effect upon ,his ability, to ear,n hitlliving since the accident as compared with his ability to do so before, and the probable effect of those injuries upon his future health and strength.' Under all these circumstances, and in' view 'ofa11 these facts, they should estbnate the damages, and give him such swn as they think will be a not, an unreasonable, compensation.
E. L. Johnson, for plaintiff. · Willard TeUer, for defendant. MCCRARY, C. J.,(chairging jut'y.) It is your province'and duty to detElrmine the facts of' this case in the light of the evidence which ;you have heard, and oHhe which the court will 'The
592
PEDBRAL BEPOBTEB.
(#
plaintiff sues the defendant to recover damages upon the ground that he has been injured in his person by reason of the negligence of the defendant, the Union Pacific RaHway Company. Y01,1 will observe, therefore, gentlemen, that the question which lies at the foundation of this suit, and which you must decide as a question of fact, is a question of negligence. If the plaintiff has failed to establish, by a fair preponderance of the proof, that his injury was the result of the negligence of the defendant, he cannot recover; but if he has established that fact by a preponderance of evidence, he may recover. Negligence is the want of that care and prudence which a man of ordinary intelligence wouldexercis6 under alI the circumstances of the given case. You may consider the question of negligence in this light: Whether a man of ordinary care and prudence would have acts whil;lh are shown by the evidence to have been done by done the defendant railway company, and of which this plaintiff ,complains. You must be satisfied that the defendant company was negligent, and alsei that the plaintiff's injury was the result of that negligence, or, as the law puts it, that 'the negligence was the proximate cause of the injury. It may be well to explain to you what is meant by the term "proximate cause;" and I think, perhaps, as good a definition' as I can give you is this: that the injury must have been the natural and ordinary result of the cause; or, in other words, the question here may be stated to be whether a reasonably prudent and cautious person ought to have apprehended that the injury-might result from the act which was done. Now, in this case the proof shows, and about that there is no dispute, that a "push car" was left near the track by one of the employes Qf the defendant, and that it was not locked or secured in any way to prevent its being placed upon the track. It was,however, placed upon the track, and by whom we are not advised. It is not to be presumed that it was done with the knowledge or consent of the defendant. Ii that were so, it would be incumbent upon the plaintiff to establish it by proof. So that .we may take it to' be established that it was placed upon the track by some third person, by some outside party, and the question for you to determine is, whether the leaving that push car in that position was an act of negligence. In order to determine that question you must consider all the facts and circumstances of the case, alld, in the light of such knowledge :as you have, which is common knowledge to every,hody, you will decide whether'the railroad company, was bound to anticipate that thep'Ush car might be placed upon the track, and that injury
BARRIS
f).
UNION PAOIFIO B. 00.
might therefore result to some person on a train. If it had been some other article besides a push car there might be no question about it; as, for example, if it had been a common road wagon which had been left by the side of the track, or if a pile of lumber had been left there, or a lot of railroltd ties, we would all understand at once that the railroad company could not expect and could not be required to anticipate that somebody would come along and place one of things upon the track. The .question is, whether a different rule applies where the article is a "push car." While the company is bound to use great care in order to keep its track cleltr for the safety of its passengers and for the safety of its employes, it is for the unlawful act of sOJIlC third party in placing obstructions upon the track without its knowledge, .or consent, unless it be in a case done SOIne act which it plight reasonably where it had by have anticipated .wop1d !eadto, the placing of the obstruction upon the track. " , ,':L It is insisted, by <lOllDSel for the plaintiff here is' a ,well· known disposition. among men to place such an articleas;fl. ,push car upon the track when they find it by the side of the track., There is no such disposition with regard to the other articles of which I have spoken; but with regard to an article of this character it is for you to say whether there is such a well-known disposition among men as is claimed by the counsel f!lr ilIa, plaintiff. If that be a fact so well known that it is a matter of general understanding and general knowledge, then the defendant was,bound to take notice of it, and to act upon it. And so you will come to the question whether, when the push car was: left in that position, the railroad company was bound to know, bound to anticipate, that it might be placed upon the track, and thereby that some one might be injured. The rule with regard to the negligence of fellow-servants, to which some reference has been made, I think has little, if anything, to do with the case. There is, I suppose, very little question that the company here either had no rule requiring a push-car to he locked, or that, if they had such a rule, tlJ.at it was not observed; in other words, there was no rule or practice of the company that required the foreman of this division to lock his car. He left it by the side of the track, as I I'J,pprehend you will have no diffioulty in determining, upon the evidence, in accordance with the usual custom in such cases upon that road. Now, if there was.negligence at' all, under such circum. stances as that, it was the negligence of the company in l\ot baving v.13,no.1l-38
594
FEDERAL
some rule requiring the locking of cars when left by the side of the track, and that is the question for you to determine. It is true, as counsel for the defendant has stated in discussing this question of proximate cause, that if there is any intermediate independent cause to which the injury can be attributed, then the company is not liable. But that is but another way of stating the rule that I have already stated, because, if the company was bound to anticipate that there was danger that this car would be placed upon the track, then the placing of the car upon the track by some intermediate agency was not an independent cause, but was only one of the causes included in the chain of causes which resulted in the injury. So that we must come back in the end to the question which I have already stated to you, whether the leaving of that car in that place was of itself an act of negligence; and it was not an act of negligence unless the company was bound to apprehend that it might be placed upon the track, and might cause an injury. In determining this question you are to consider all the facts and circumstances as they are developed before you in testimony. You may consider the weight and construction of the pIacear, its distance from the track, the statute of this jng obstructions upon the track, under heavy penalties, the custom with regard to manner of takingcare of such cars when not in use, and the fact, if it is established, that from Golden to Denver is down grade, as well as all other facts and circt1mstances developed in evidence. before you. And if, upon a consideration of all the evidence, 'You conclude that the defendant was guilty of negligence in leaving the push car by the side of the track, and that that negligence resulted as the proximate cause in the injury of the plaintiff, then he is entitled to-recover; but if you find either of these qtiestionsagainst him, he is not entitled to recover. If you find for the plaintiff, you will then come to the question of damages. In determining that you will consider the pain and suffering to which he has been subjected, both mental and physical, the loss of time and loss of wages which has resulted from his injury, the nature and extent of his physical injuries, their effect upon his abil· ity to earn his living since the accident as compared with his ability to do so before, and the probable effect of those injuries upon his future health and strength. Under all these circumstances} -and in 'view of all these facts, you will estimate the damages, and give him such sum as you think will be a reasonable, not an unreasonable,
AMERICAN WINE CO. V. BRASHEB.
695
You have nothing to do, gentlemen, with the fact that this case has once been tried in this court, or with what some other jury may have determined about it. You are to consider it upon the evidence adduced before you upon this trial, and upon the instructiona which I have now given ,you.
AHERICAN WINE
Co. 11. BRASHER
BROS.
(Circuit GouTt, D. Oolorado. July 24, 1882.)
L IlATBRI.lL lssuB-NBW TRIAL. Where wine was sold to defendants, who were regular wine merchants, upon representations made by the agent of plainti:IIs that such wine had a large sale in the region covered by defendant's trade, an issue as to the truth or falsity of such representations, submitted to a jury uPon a suit on an accepted dran drawn for the first installment of such wine delivered to defendant by plaintUfs, is a material issue, and the submission to, the jUry is not ground for a new trial. 2. SAllB- W AIVBB- OBJECTION NOT MADB ON FI'BIIT Tm.u.. Where an issue is tendered as to the quality of the article sold upon the lepresentation of the agent of the plaintiffs that it was of good quality and readily salable, and the plainti:IIsgoto trial upon such issue, and the jury disagree after a jury is impaneled for another trial, as a matter of law there may be some doubt as to whether such an issue ought to be submitted to a jury upon a question of fraud and deceit in respect to the sale of such article, the plainti1fs must be held to have waived any right to object such issue. 3. CoNTRAOT-REsCI88I0N-CONDITIONS PRECBDENT-PART EXECUTION. Where a contract has been induced by fraud, it is not necessary that the party eeeking to rescind the contract should absolutely tender what he has received on account of the contract. But it is necessary that he should gi;ve notice of his intention to rescind, that he will not abide by the contract, and it is necessary that, upon the trial, he should be in a situation to put the other party in the .ituation in which he was at the time of the discovery of the fraud. That the contract is partly executed at the time of the discovery of the fraud will not,: iD: itself, prevent a rescission, unless it may be that it has gone so far that the subject-matter of the contract, or the greater part of it, has disappeared. &. 8Alm-VEIIDIOT SUSTAINED ON CoNDl'l'IONS lHPOSED.
In this case, the jury haVing found a verdict against the plaintiifs, and i_ favor of defendants, allowing them damages for their expenses for freight, storage, etc., on the wine, it was made a condition of sustaining the verdict. that the amount actually received by defendants from the sale of a part of the wine be deducted from the amount of luch venUe"
Motion for New Trial. J. W. Hornor and J. A. Bentley, for plaintiff· . Charle, II Dillon, for defendants. ILu.r..ETT, D. 1., (oraUy.) The Wine Company, & eor. pOration· doing business in St. Louis, Missouri, brough' suit against
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