mE". CHICAGO & A. B. 00.
96
course, with notice of the requirements olthe law. As the act under wblch: the bonds purported to have been issued took .effect only from its publication, it was manifest, from the date of the bond itself, that the required publication of the act could not have been made prior to the issue of the bonds, and it could not, therefore, have been authorized by the law as claimed on its face. It is finally insisted by the learned counsel for defendant that section 1, of the state' constifution, prohibits, in strong terms, such municipal corporations from lending their credit in any form in aid of any individual, association, or corporation whatsoever. But by section 8 of said article special exception is made in favor of the power by such corporationsto create debts for supplying themselves with water. for irrigation, for suppressing fires, and for domestic use. There seems to be no limit totheextent;ofthedebts which maybe incurred for such purposes. The facts in this case aptly illustrate the great danger to the ing constituency in intrusting such large powerto the average trustees of local cOmmunities, and the bitter experience of its oppressiveness may teach the people of Colorado the same lesson learned by some of the older states, that the only complete safeguard of the people against such .exposure lies in unconditional abrogation and denial of the power itself. Here is II community of only about 400 souls, with an assessed valuation of prdpertyof only $119,000, with a bonded indebtedness, in the first four months of its corporate existence, of $36,000, without one dollar of benefit in return having been received by the inhabitants. How such a burden is; to be met, and how the court is to enforce its payment, is not apparent to my mind. But the question before me is one oflaw only, and to that only do I now respond. My conclusion is that the plaintiff is entitled to judgment for the principal and interest of the ooupona sued on herein, and it is accordingly so ordered.
PIKE
tI. CHIOAGO &;
(OITCUUCov,?t. E. D. Mf880'U7i, E. D. January:US, 1890.)
Ii BA.8TBB
., A watchman on a and the engineer and .conductor of a train on the road, being engaged in different departments ot the company's service, and .. working. under the immediate direction of difEerentforemen, are not fellow-servantAl, so as to exempt the company trom liability to the former for the trainmen'. negligence. . . In an action by watchman ofa railroad bridge fOr injuries received by a passing train, the only theory on which a verdict could be sustained was that plaintiff was caught on the trestle. The onlr evidence in support; of this theory was the testi1I10ny of three w;ltness68 whp the scene of the acpidllnt 8 or 10 boursafter t, happened, and who stated that theY found a spot of blood .at the foot of theea.s' abutment,'from SO to·l5O feetcin' a direct line from the tOll ot the trestle. Theplain. tiff was weeks by )1{\1 wOllncl, which was on the head, and after he regamed consoJ<llisness had no recolllsCtion of the details. 'The teatiiilony aJicLtwo passengera tended to Bhow that he Wl\ll struck.
AND ·SERVANT-FBLLOW-SnVANTB-R.ULROAD EHPLOYBs·
"NEW 'l'RIAL-WEIGRT OJ' EVIDENOE.
FEDERAL REPORTER, vol. 41. at 'the end of the bridge, probably while sitting near the track. There were no wounds, except the one on his head, wh,ich could have been made by the locomotive b\llD.pers. HeLd, that a verdict for plaintiff would be set !\Side.
At Law. On motion for new trial. D. P. Dyer, for plaintiff. R. H. Kern, for defendant. THAYER, J. The motion for 8 new trial in this case assigns various reasons why the verdict should be set aside and a retrial ordered. Among other reasons urged in support of the same, it is contended that plaintiff stood in the relation of a fellow-servant to the engineer and other trainmen in charge of defendant's train by whose,alleged negligence the injury is said to have been occasioned. As this .point, if well conceived, goes to the foundation of plaintiff's ,right of action, it will be first considered. The testimony in the case tended to show that plaintiff was stationed asa watchman at a bridge or trestle on the line of defendant's tn:ilroadj that the bridge in question, as well as the,track for a distance Of 1,200 feet to<the east, and fora distance of 700 feet to the west, thereof, was being raised and repaired at the time of the accident, to overcome a <lonsiderable down grade as the track approached either end of the trestlej that warning or "slow lights" as they are termed, had been set at, a distance of 20 telegraph poles from each end of the, bridgej that it was plaintiff's duty, as watchman, to see that the slow ,lights were kept burning during the night, and also to inspect the track and trestle that was undergoing repair, and see that both were in a safe condition for the passago oftrainsj that the proper discharge of such duties required tbe plaintiff to pass at intervals over. the track and trestle, and to go to a saffident distance in both directions from the trestle to bring the slow lights into view'. The testimony showed that the plaintiff was either employed by and worked under the orders of the regular section boss. or the foreman of the oonstruction gang that was making the repairs in question. The petition charged, in substance, that plaintiff "was caught, struck, and thrown from the bridge" in question, by one of defendant's passenger trains on the night of J\l.ne28., and that the complained of was due to the negligence of the 'engineer and conductor of the train, in failing to give the customary, warningsignals as thetrain approached the bridge, and' in running the train at a dangerous rate of speed. If the question now under consideration was to be determined solelyr with reference to the rule of liability which has the sanction of the <lourt of last resort in this state, there is no doubt that the court would be compelled to hold that the plaintiff and the trainmen-that is, the engineer and conductor of the passenger train-were not fellow-servaDtll in such sense as to exempt the defendant from liability to the plaintiff for the traintnen's negligence. In the case of SuUivan v. Railway Co., 97 Mo. 114, 10. S. W. Rep. 852, a section boss was run over and killed in <lonsequence of the negligence of an engineer in charge of a train. The negligence of ihe engineer appears toh.ave consisted in the fact that he failed to keep a proper lookout, and failed to give a proper warning of
PIKE .,.
CHICAGO & A. R. 00.
9V'
the approach of the train. It was held that the company was liable for the negligent act in question, as the engineer and section boss did not at the time occupy the relation of fellow-servants. The decision in the Sullivan Case was referred to and criticised in some respects in a later case decided by the same court, to-wit, Murrayv. Railway 00., 12 S. W. Rep. 252, (not yet officially reported.) Though criticised in some respects, I doctrine underlying the understand the court to adhere to the decision, that, when working independently of each other in their respective departments of the general service, and under the immediate control of different officers or foremen, trainmen and trackmen are not to be regarded as fellow-servants, within the meaning of the rule ext'mpting the company from liability. A similar doctrine prevails in the state of Illinois. A foreman of a party of track repairers or sectionmen, while engaged in the discharge of his duties, was killed by a large lump of coal carelessly dropped by a fireman from the tender of a passing train. It was held, in an elaborate opinion, that the defendant company was liable to the personal representatives of the deceased for the negligent act in question. Railroad Co. v. Maranda, 93 Ill. 303. The decision in this case expressly holds that persons employed in different departments of the same general s'ervice, and under the immediate supervision of different officers or foremen, and who do not co-operate with each other in such manner as to bring them together, so that they can exercise a cautionary influence over each other, are not fellow-servants. In the case of Garrahy v. Railroad 00., 25 Fed. Rep. 258, Mr. Justice MILI.ER held, in this circuit, that a laborer employed in the business of track-laying, under the orders of a section foreman or boss, was not a fellow-servant with persons engaged in running and managing a switch-engine, that was not being used in connection with the business of track-laying, in which the laborer was engaged. In the case of Howard v. Canal Co., 40 Fed. Rep. 195, the United States circuit court· for the district of Vermont held that traokmen, when engaged in their own department of the general service, are not fellow-servants with trainmen engaged in their department, in such sense as to exempt the master from liability to the former, for injuries sustained by reason of the negligence of the latter. To the same effect is the decision in Railroad Co. v. O'Brien, 21 Pac. Rep. 32. So far as I am advised, the precise question now under consideration has never .been decided by the supreme court of the United States. The case of Randollv. Rail1'OadCo., 109 U. S. 482,3 Sup. Ct. Rep. 322, cited by defendant's counsel, merely holds that trainmen employed on one train in a railroad yard, are fellow-servants with trainmen on another train of the same company that is being operated In the same yard. The case of Railroad Co. '\. Ros8, 112 U. S. 377, 5 Sup. Ct. Rep. 184, which has sometimes been cited in support of the proposition that persons employed in different departments of a given service are not fellow-servants, although the general object to be accomplished by the service is the Bame, and the employer the same, in reality only decides that the conductor of a train, who has authority to control its movements, stands in v.41F.no.2-7
FEDEB'AL REPORTER"
vol. 41.
to, other, elnployes on the Same train. the 'reJatlon"of a The'C&Se:appears to have no immediate bearing onthe:qnestion how far that persons are employed in different departments of the same sEllwioe,I'and under different foremen, will destroy the relation of fellowservlint to relieve the master .from' liability for their negligenoe. ' In some of the cases above cited, particularly in Railroad 00. v. Merrandd. andin JIurrayv. Railway. OQ.:,it is conceded,' that ,the majority of the cases in this country and in ,England hold, ahd suoh is no doubt the fact, that persons are in the same common employment, and hence are fellow-servants, within the ;meaning of ,the rule exempting the master from liability to a servant for the negligence ofafellow-servant, when they are 'engaged in the same general:business,aiqling at one generalresuIt, and ,the: employer is the aame,although they .work in different dep!lrtments of'lthe general service; Shear. & R. Neg. (4th Ed.) §§ 235, 23,9, and cases cited. There is 8 numerous class oLcases to be found in th,e books where the master has held liable to an employe for the negligence oia fellow-servant, on ,the ground that, in the ,particular mat.ter:complained , of, the servant in: default was the hnm.ediate representative of the' master in the performance of some duty which the master owed to the injured employe, as 'where servants deputed by the master to supply and, keep in repuir suitable tools, machinery,and appliances wherewith other employes are to work, are negligent in the performance of such duties., Railroad 00. v. Herbert, 116 U. S. 646, 6 Sup. Ct. Rep. 590, and ca:ses cited; Hough v.' Railroad 00., 100 U. S. 213; Davi8 v. Railroad 00.,: 55, Holdenv. Railroad 00., 129;Mllss. 268; LewiBV.' Railroad Cb.,5.9Mo. 495; BaU v. Ra,ilroad 00., 74 Mo. 30l. The decisions in this clalls :of :cases are grounded "on, the principlt>, now well settled in thiscountTy, that an employer cannot escape liability; e¥eJi to an employe, for the llon-performance,ornegligent performanoe,of a: duty' that he owes: to an employe, merely, by intrusting its performance to some other servant or agent. Notwithstanding the fact tb.at thos\3: cases really have no bearing on the question who are fellowservants, ,withinLthe,tDeaning of the rule exempting employers from liability to servants fOT' the negligence of fellow-servants, yet it is probable, from the manner in which thisclaasof cases is sometimes cited, that theybav,e,occasioneds01ineconfusion, and it is; even possible that in'a few· instances they have,induced some couDis, in opposition to the generaLcurrentof authol'ity, to hold a master liable to a servant for the negligent aot,of a fellow-servant,' merely because they were employed in different departments of the same general service, even where the negligence .complained of did.:p.ot consist in the'neglect of some duty which the law specially dev,cilves on the master. , But, be this as it may,thedecision in this circuit. in the case of Garrahy v. Railroad Co., 8Upra, supplemented as it is by the decision in BuUivanv. Railway Co" swpra, compels me to hold in the case at bar, that the plaintiff and the trainmen, to whose negligent act the injury complained of is imputed, were mot fellow-servants. 'fheywere engaged in different departments
t' r PIKE "fli cH1cA:GO& A. R. co.:
. ,99
ijf'the the inunediater direction of different foremen; discharge'bftheirseverai dutiE's, they did not co-operata iri'suclf maimer as'to exercise an influence over eatJh 6ther's acts to any extent than ,trainmen and trackmen usually co-<>perate, and,accohiirig to the au'thorities last cited,clihnot,be regarded as fellow-sen'arit!. It results' from this vieW" that therewasn<) error committed in refusing'defendant's fifth request. "It is also insisted, that the verdict is' against the W"eight of evidenoo; under the law as 'lfIy the court. 'This is the only other porntof the mption requiring consideration. The case made by the petition vvasj as before stated, that plaintiff was caught on the trestle where he had opportunity of escapipg from the track, as he was passing over it iri the proper discharge of his duties, by a: train running at an e±cessive rate of speed, oMng to the failure of the engineer to give such signals of the approach of the train as were' usually given. There was no other possible theory on which a verdict for the plaintifll could be sustained, and so the court, in effect, charged the jury. The cases are numerous that' a watchman, in a normal condition, situated as the plairitiff was, with an unobstructed view for a considerable distance in both 'directions from the trestle, who permits a train to overtake and strike, hirD on a railroad track ata place where it is possible for him to step aside and off the track, is himself guilty of sQch contributory negligenceas precludes recovery. Schofield v. Railroad Co., 114 0. S. 615, 5 Sup. Ct. Rep. 1125; Shear. & (4th Ed.) § 90, and cases cited. Hence the charge was carefully framed in accordance with the averments of the petition, .so as to require the jury to find whether the plaintiff was overtaken on the trestle, and the verdict can only be supported on the theory that they so found. There was only one fact in the case, and that, under all the circumstances, ('annot be regarded as being ora very persuasive character; that hltd any tendency to support such a finding. Three witnesses who visited the scene of the accidebt, ftom 8 to 10 hours after it occurred, testified that they found a spot ofl::llood at the fodt of the embankment of the east abutment, and on the north side of the trestle, and at a distance variously estimated from 3010 .50 feet in a direct liue from the top of the trestle., The blood spot in question was so located that, upon the theory, that it flowed from the wound in plaintiff's head, it might be inferred that he was thrown by the train fronl the trestle to the spot in question; that is, for a distance of some 30 or 50 feet. This was the only testimony in the case having any tendency to show that the plaintiff was caught on the trestle. The plaintiff himself was rendered unconscious for the space of some weeks by the wound he received on the head, and; after he regained consciousness, professed to be unable to recollect where he was when struck by the train, or any of the details of the accident. On the other hand, the testimony of the trainmen, and two passengers who tes;tified in behalf of the plaintiff, tended very strongly to show that he not caught on the trestle, but was struck somesi2\: or eight feet east o(the bridge, and was at the time probably in a sitting posture.
100
FEDERAL REPORTER t
proximity to the track. The Iconductor and brakeman who ,tir$t went to the of the plaintiff say that they him lying unconscious, not over four feet from the rail or track, on the top of the embankment, and a few feet east of the trestle. He was certainly lying in thltt position when the two passengers above referred to (who must be regarded as <lil:!interested witnesses) alighted from the train, as soon as it stopped. The assumption, therefore, that plaintiff was struck on the trestle, and thrown some 30 or 50 feet to the foot of the embapkment north of the trestle, where the spot of blood is said to have been found, involves the further that the ,conductor and brakeman not only willfully perjury on the trial, but that on the occasion. of the. accident they carried the plaintiff from the foot of iii lligh embankment to the top, and,laid him along.side the track, before any passengers had alighted from the train, and concealed from the passengers the fact t4at he had heen found at the foot of the embankment. It appears to the court that the assumptions in question are unwarranted by the appearance of the witnesses, their manner on the witness stand, and the physics of the case. No wounds or bruiseS,io! any sort appear to have been found on the plaintiff's body except that on the side and back of bis head. that rendered him un· conscious, which wound was of such character as might well have been made by the bumpers of a locomotive if the plaintiff was sitting in too close to the track. It is almost inconceivable that the plaintiff'sboQy would not have shown other wounds or marks than the. oneJast indicated, jf he had been struck on the trestle by a train such velocity,as to hurl him to a distance of 30 or 50 feet from the trestle to the foot ofthe embankment. AgsJ..u, the blood spot said to have been found at the fopt of the em· bankment may as well 1:>e explained upon the theory that it was occasioned by a: trifling injury to some ofthe men or animals .who had been working,at.and around the embankment, as that it flowed from plain. tiff's,w9uncl.. The engineer of the train also testified 1hat, as the train approached the bridgefrom the west, he saw a lighted lantern standing on theeastabutnlent of the trestle; that no man was to him at the time, bl,l.t, as the engine passed the)a.mp, the fireman exclaiDled that they hlld,hita man who was lying on the side of the track by that lamp, and tbat the train was thereupon stopped. Questions of fact are, as a matter of Qourse, for the jury to decide; but when the finding of a jury: on a vitaliasue is of such character, .considering the weight of evidence, as, to raiflea suspicion that undue sympathy, paJ;'tiality,prejudice, or popular:clatnor has controlled their action, it is clearly the duty of the court to set their verdict aside. This is one of the most important and responsiblejas it is one of the most. delicate, duties that trial courts have to discharge. My .own view of the question, whether the plaintiff was thrown from the bridg\3, after a careful review of the testimony, is 80 utterly at variance with that of the jury,-their finding seems to me to be so clearly, contrary to the weight of proof,-that I am constrained to set tqe Bame aside, .and to grant a new, trial. It is so ordered. ,
SMITHERS 1'. JUNKER.
101
SMITHERS
v.
JUNKER.
(Circuit Court, N. D. IlHnois. December, 1889.) A note reciting: "For value received I promise to pay to S. F. Smithers $2,048.25, payable Bot my convenience, and upon this express condition, that I am to be the sole judge of such convenience and time of payment, "-does not contemplate that the money shall become due only at the pleasure of the maker, without regard to lapse of time or the rights of the payee, but that maker is to have a reaSonable time, to be determined by himself, in which to pay the note. NOTES-TIME OF PAYMENT.
At Law. On demurrer to declaration. B. W. Wilson, for plaintiff. Harve;y H. Anderson, for defendant. GRESHAM, J. The first, second, and third counts are upon a written instrument, which is set out aEl follows: "CHICAGO, November 1, 1883. "For value received I promise to pay to S. F. Smithers two thousand and forty-eight and 25-100 dollars, payable at my convenience, and upon this express condition, that I am to be the sole judge of such convenience and tiwe of payment. A. JUXKER."
It is averred that, after a reasonable time had elapsed, the plaintiff demanded payment, which was refused by the defendant.1'he defendant's promise was to pay the money in consideration of something of value received from the plaintiff. If what the defendant received was a mere gift, and it was not contemplated by the parties that the instrument was to be a binding obligation, why was it executed? Its execution is evidence that the plaintiff expected an equivalent for What the defendant received, and that the Jattp.r understood he was bound to pay the sum of.money specified, not immediately or on any certain day, but within a reasonable time, to be determined by himself. It was not con· templated, however, that the money should become due only at the pleasure of the defendant, without regard to lapse of time or the rights of the plaintiff. The beginning of the instrument imports an obligation to pay a specific sum of money, and the succeeding language should not be construed to destroy that obligation. If the defendant was given the sale right to say when it would suit his convenience to pay the debt, he might decide that he would never pay it, which would not be a reasonable or honest exercise of his judgment as to time of payment. The instrument was executed on November 1, 1883, and after the lapse of more than five years payment was demanded and the debt became due. Such contracts should be construed liberally, in favor of payees. Lewis v. Tipton, 10 Ohio St. 88; Works v. Hershey, 35 Iowa, 84U; Ramot v. Sclwtenfels, 15 Iowa, 457; Kincaidv. Higgirl.3 1 1 Bibb, 396. Demurrer overruled.