O'*ENS ti. MISSOURI PAC. BY. ;
CO. J"
671
OWENS 1i.' MISSOURI
PAC. Ry.
CO.
(Circuit Oourt, E. D. TeJJas. JURY. .
March Term, 1889.)
COMPANIES-AcCIDENT TO PERSON ON 'fRACK-EVWENC'E-VJEW BY
Plaintiff was run over or against by defennant's locomotive baullIJg a freight had his arm at elbQw broken and fractured. Plaintiff says he was eJ,Jdeavoring to step off th(l track .bed when he was struck by the en,lfine. De. fendant contends that he Was drunk, lying with his' head on the raIl, and hili arm nea11 or on the rail, and his limbs extending outwardly from thc The judge .allowed, against defendant's objection, the jury to go from tile court.-room to make an examination of, a railway engine. Held, there was nq error to vitiate a verdict for plaintiff. On the evidence the findings oitha jury seem to be correct. (Syllabu8 /)11 the Court.)
At. Law. On motion for new trial. Actionby Patrick Owens against the Missouri Pacific Railway Company. Bra4Y &' Ring, for plaintiff. Willie, Mott kBaUenger, for defendant. BOARMAN,J. The plaintiff sues for damages because of personal injury inflicted on him on being run oVer or against by defendant's loco· motive hauling a freight train. The jury allowed him $4,500. The matter is n{)'\v on a motion for'a new trial. The evidence not disputed shows that Owens, at the timt\ he was injured, worked in car-shops at Houston, and earned from $58 to $75 per month wages; that he it:! about as years of age; that his right arm and hand are permanently injured and aimost useless to him for any work, skillful or otherwise; that he now earns or can earn much less than formerly; that he lived in the suburbs of Houston, on Car street; that defendant's railway track runs along this street, .northand south; that the street has no sidewalk or improvements for the Use of footmen or vehicles; that the railway track, being raised above the street level, is used, without objection, commonly by people living insaid street as a footway; that Owens, having been "down town" iIi Houston until 2 or 3 o'clock, A. M., rode with a companion in a hack homeward to a point at or near the place on defendant's railway track about - - .- yards south of the point where it crossed by the New Railway track; that, reaching said point, Owens got out of the hack, and walked on northward up defendant's track; that when he had gone about 250 or 300 yards up the track he was run over or against by the defendant's locomotive hauling a freight train, and injured as aforesaidithat a little while before he was struck' he heard a train whistle at the. said railway crossing, which he took' to be a whistle on a train running on the New Orleans Railway. The'displ;lted matterE/'relate to Was running when Owens wasstruckj to the distance the trainh'adrim after CrOi:lSil1g the New Orleans Railway track; to the engine bell was ringing as, the train was running dn 'Car street, as the company's rules and the city' ordinance require to be
is
572
FEDERAL
vol. 38.
done; and upon the very important question as to whether Owens was in fact w::l1king along the railway or lying down with his head and am1 on or near to the rail; with his limbs extending outwardly from the rail. On .last point, defendant's witnesses, the engineer and fireman, then on the locomotive, say that when they saw Owens first he was lying down in the WllY just mentioned; that they saw him for the first time when the engine was 20 or 30 feet from him, and they could do nothing to save him. The fireman, sitting on the left-hand side of the cab. said he thought the object which pro\7ed to be Owens was a pile of coal ashes lying on or near the track. They both say the engine bell was ringing, as the rules and ordinances require; that the train was running about four Or five hour; that the train, before going over the New Orleans Railway cro,:sing, had come to a full stop; that Owens was hurt about yards from said crossing; that Owens was knocked off by the cow-catcher pushing his head off the rail; and that they talked with him and heard him complain only of his head being hurt; that he said nothing about his arm being injured. Owens says he was walking homeward along the track; that he heard a locomotive whistling at tIle New Orleans Railway crossing, and he thought the whistling engine was on that track; that defendant's engine bell was not ringing, and no whistle was blown after the engine passed over the New Orleans Railway eros&ing; that when he first heard the noise of defendant's train, running rapidly behind him, it was close up to him, and in his effort to get away turned· as quickly as he could, and in trying to step off' the track was struck by the engine, or some part of it, and thrown off the track to theground below the surface of the track-bed. In the nature of things, there were or could be but three witnesses who can give positive evidence on this disputed point. . The weight of the direct evidence seems to be with the defendants, and would be conclusive aglJ,instplaintiff, but for the severa.! ;witnesses for plaintiff, who relate a' number of circumstances which corroberate Owens' evidence. Their testimony supports Owens' theory as to the train running 10 or 12 miles un hour. They say no bell ringing on the engine at the time of t1:\e accident. The engineer and fireman, testifying for defendant, said. the train always went slowly on that street; that they always rang the bell and blew the whistle when running along said street. On this poiut several witnesses living on the street said the trains often went rapidly by, and failed to ring the bell while running on Car street. In calling the attention of the jUry to the issue of fact as to whetherOwens was walking or lying down :when he was hurt,. I said to them that the question as to whether Owens was lying on the track, or was walking on it, ,WOUld or could be, in some degree affected by the opin,ion they might reach as to whether. or not he was drunk at the time he was injured; that if he was shown to be drunk, as was contended for by defendant's counsel, they would more readily believe the evidence of theengineer and firemen,-one or both of whom said his breath smelt of liquor,-who testified that Owens was lying down when he was run over; that, on the other hand, if the evi.dence, taken 1111 togetllCr, showed that.
OWENS 11. MISSOURI PAC. RY. CO.
673
he was sober, the evidence of himself, to the effect that he was not lying down. but was walking homeward, would be entitled to greater weight; and the important issue of fact as to whether he was walking or lying down must be determined one way or the other by a preponderance of all the evidence illustrating it. The matter as to whether Owens was lying down or walking along the track was strongly urged by the counsel arguing the case on either side. The plaintiff's counsel conceded in his argument that he had no case if Owens was shown to be dnmk. The defendant's counsel contended that the facts and circumstances showed that Owens was drunk. A number Cif plaintiff's witnesses, among whom was the hack driver, the doctor who was at once called to see Owens, and the oecupants of the house in which Owens lived, said in positive testimony that Owens was sober. The defendant had no contradictory evidence as to Owens being dnUlk of a positive kind, but relied on 'circumstances and on the statements of the engineer or conductor, who said his breath smelt of liquor. Whatever may be the truth as to his being drunk or sober, the evidence, judicially considered. is certainly stronger in lavo,' of Owens' own testimony, that he had not been drinking, and was not at all drunk at the time the injury was inflicted on him. A number of witnesses testified that Owens was habitually a sober man, and the doctor who saw him a few minutes after the injury occurred said he was not at all intoxicated; that he smelt no liquor on his breath. Thejury e\'idently did not believe Owens wasdrunk, and in believing plaintiff's theory of the case on all the material issues. It appears, too, that they thought he, while walking along the railway track, was not given the benefit of such alarms or warnings from the train as he wus entitled to by the rules of the company aud by the city ordinances. It was not denied by defendant that the railway track waS used by footmen at any time without objection. This is the second time the jury have found for plaintiff, and I no,v fully concur with the jury in their findings, except as to the amount allowed. The defendant, in urging his motion for a new trial, contends that the judge erred in allowing the jury to go from the court-room to examine a railway engine. Defendant objected at the time, and took a bill to the ruling of the court. I do not think, after examining authorities, the point is well taken. I do not know how much, if anything, the jury did learn or could have learned by this examination of a locomotive; hut in reaching a verdict they had to decide for themselves whether Owens was struck by the engine, and how it came in contact with his body or limbs, and whether he was walking or lying down when, he was struck. In their effort to decide these important matters, no harm could have been done either side by allowing them to examine the construction of an engine similar to the one that ran over or against the plaintiff. , I. tpink plaintiff is not entitled to more tJlan $2,250, and suggest a remittitur to that sum. Motion for. new trial overruled.
(OircuitCou'I't, 1.
E.D. April 8, 1889.)
a,
Notwithstanding the practice conformity act of 1872 and the judiciary act of 1875, and notwithstanding the prac<tice in Ohio of tJ,"aversingall the aver· merits of the petition by the general denial. it remains the law that a plea to the jurisdiction of the court' denying the averments of the diverse citizenship, must be,' in the. federal courts of Ohio. by a special plea· of abatement sep' arately pleaded and tried. AnY9therplea to the.. merits. i,s a waf ver of plea in abate'IDent; and all evideil-ce 'upon the subject of the citizenship isirrelevant if there be no plea in abatement raising the question of jurisdiction, or some other plea to whiQh that evidence is pertinent and rel,llvant. SAME-JURISIlIOTIONAL QUIllSTION...,.DIRECTING IsSUE."...AMENDWllNTOF PLEAD, If. however. in the Qbsence of a special plea to the Jurisdiction. the court can see by the proof that there lila:jurisdictional question as to the citizen, ship ofthe parties. it must, under the fifth section of the judiciary act of ,1875. direct an issue to be made by the pleadings. try that question. and dismiss the suit if there be no jurisdiction; and therefore an application by the defendant tOamElII,d his pleadings in order to raille the question will and be granted, even after the trial has commenced. ING. , '
IN ABATEMENT-PROOF OF CITIZENSHIP.
8.
SAME-TRAVERSING AVERMENT OF CITIZENSHIP OF CORPORATION.
4.
Th'e proper'form of averment of the citizenship of a plaintiff ,corporation. where upon special facts.it is claimed that the law under which the association is organized does no.t create a corporation, but only a limited partnership with a suable capacitY; suggested. Held. that it may be done by either a general or a special traverse. but the latter is the better form. JUBIBDICTioN OJ' FEDERAL
'
LIMITED PARTNERSHIPS - CAPACITY TO SUE COURTS-CORPORATIONS., :, '.;
The limited partnerships of Pellnsyrvl\Uia having a capacity to sue and be sued by the partnership name and exercising other functions analogous to or identical with those of corporations. are nevertheless not corporations en· titled to sue as artificial citizens of: the states, within the purview of the con" stitution and laws Of the United States in that behalf. The federal courts will not extend ,the creation of such artificial citizens of the states in order to acquire jurisdiction over organizatloll11 that are not corporations, strictly 80 called.
G.SAME-SUXT AS CORPORATION-AMENDMENT OF PLEADING.
, Where a limited partnership sued ;after the manner and 'style of a corporation. alleging itself to be such under the laws of auother state, and it was fuled that it was not entitled to that liberty or privilege in the federal courts. it was allowed to amend its pleading, and to sue as individuals. they being citizens of other states than that, in which the suit was brought. suing after the manner andatyle of partners in the Qrdinary way of sU,its by partnerships, but no.tin its partnership name pure and simple. since that would not disclose the facts as 'to citizenship. but would be to treat them as corporations are treated in that matter in its relation to the jurisdiction of the federal courts.
At Law. Hent1erson,' Kline Tolle.B, for L. A. RU88elland John w: Me Vicker, for defendants.
state of Pennsylvania, and that the defendants are citizens of the state of Ohio. The answer admits that the defendants are citizens of Ohio,
a:n incorporation duly organized ullderand by virtueof the laws of the
HAMMOND,
J. The plaintiff's declaration or petition avers that it is