H'DONALD V. UKION pAc. RY. co.
579
McDoNALD
v.
UNION
PAc. Ry. CO.'
(Circuit Oowrl, D. Oolorado. June 18,1890.)
1.
NllGLJGENClI:--:EvIDENCE-BURNtNG SLACK PILE-PERSONAL INJURIES.
The defendant dumped the slack coal froIJ;l its mine in a spal» 400 feet long, and 60 feet wide, between the mine and a town 5()O yards distant, containing 600 inhabitants. The slack pile took fire by spontaneous cOIJ;lbustion; and, slack being stautlydeposited, burned continuously. The slack-pile was not fenced, as rf;l· quirlld by a law of the state. The children, and others, living in the town, and strangersl were in the habit of visiting the IJ;Iine by a rough, irregular, and llarro'w path leadmg from the town to .the IJ;Iine, which ran along the edge of the burning slac1{·pile. .In clear, calm weather the slack-pile emitted no sIJ;loke or steaIJ;l, and, the Surface or top covered with ashes' and other incombustible matter, the fire could not be.seen, and person6 having no previous knowledge of its existence could not detect its presence. The plaintiff, a boy untler 13 years of age, who was a atl'lJ.nger in the town, and who had no knowled!!:e of the fire in the slack-pile; having gone from the town to the mine to witnesslts operatjon, was frightened by some of the workmen, and, in running towards the hotel in the town where he and his mother were stopping, ran into the burning alack-pile, and was severely burned. Held, the defendant was guilty of negligence, and liable in damages to the plain. tiff for the injuries he sustained.
2.
It ia the province of the jury, haVing due regard to the instmctions of the court applicable to that issue, to assess the damages for a persQnal'injury; and this is one of the functions of a jury which the court has no right to invade or interfere with, except where it has reason to believe that the verdict is the result of passion or pl1ljndice, or of a misunderstanding of the instructions, or a disregard of them; and for a judge to substitute the damagea he would assesa, acting himself as a jury, in the place of the damages the jury have assessed, for nQ Qther reason than that he thinkll he is a better judge of the facts than the jury, is an invasion of the province of the jury, and a violation of the constitutional rigtt of the suitor to have his cau!>6 tried by a jury, and the questiona offact in it determined by their verdict. (SyUabuB bv the OoUTt.)
SAlIIE-DAMAGES-PROVINCE OJ!' COURT AND JURY.
At Law. For opinion on demurrer to complaint, see 35 Fed. Rep. 38. 'fhe following are the provisions of the Colorado Statutes in regard to fencing piles of slack coal referred to in the charge of the court: "Section 1. That the owner or operators of coal mines from which fine or slack coal is taken and piled upon the surface of the ground, in such quantities as to produce spontaneous combustion, shall fence said ground in SUCll manner as to prevent loose cattle or horses from having access to such slackpiles. " "Sec. 3. Every person Violating sections one (1) and two (2) of this act shall be deemed guilty of a misdemeanor, and shall be fined in a sum not less than twenty (20) dollars, nor more than one hundred (100) dollars, to be collected as other fines are collected, and shall be further liable to any party injured thereby in the amount of the actual injury sustained."
J. W. Mdls, for plaintiff. Teller&: Oralwod, for defendant.
CALDWELL, J., (charging jury.) The foundation of the plaintiff's action is the charge of negligence against the defendant. Negligence is the omission to do something which the law enjoins, or which a reasonably prudent man would do under like circumstances, or the doing of something which a prudent and reasonable man would not do under the
p80
JrEDERAL REPORTER,
vol. 42.
particular circumstances. The alleged negligence of the defendant consists in erecting and maintaining a burning bed or pile of slack coal at a place and under conditions which made it dangerous to persons not having previous knowledge of itB existence, and neglecting to fence the same, as required by the statutes of this state. There is no controversy about the leading facts.of the case., The defendant was operating a coal mine. The main track of its railroad ran near the mouth of the mine or pit, and parallel to the main line, and 100 feet more or less from it ran a side track or' switch. The road-bE'd of these two tracks was six or eight feet higher than the intervening space between them, and into this intervening space the defendant dumped the slack coal from its mine, which ignited by spontaneous combustion, ,and burned continuously. The dumping of the slack, and its burning, continued during the several years the defendant operated the mine. The length of the slack-dump pile was four or five hundred feet, and its width varied, being 68 feet at the north end, near where the path crossed the interveningspace between the two tracks. The mine and machinery to work it was on the east side of the railroad tracks mentioned, On the west side of the tracks, and opposite to the mine, and only five or six hundred feet from it, was, the town of Erie, containing five or six hundred inhabitants, and about 500 feet south of the mine was the railroad depot. Persons going from the town to the mine were accustomed to the two tracks by a rather rough and uneven cross the space path, which ran on 110 shale and rock-dump very near the edge of the burning slack-pile. lnclear, calm weather the burning slack emitted no smoke or steam, and, the surflwe or top being covered with ashes or other incombustible matter, the fire could not be seen, and persons having no previous knowledge of its existence could not detect it by any other sense than that of feeling, and to detect it by that sellse they would have to come hlto,'actualcontact with it. It was llot dangerous in appearance, and there was nothing visible from which a stranger could detect its dangerous"character.· The children, and others. living in the town, as well as 'strangers, ,were daily in the habit of going to the millet'? witness its working, and for other purposes, and in doing so crossed the space between the two tracks by the path before mentioned. The defenAllJltdi<J not prevent .or prohibit persons from visiting its mine. . The law of. this state required defendant to fence its slackpile. This it did not do, nor did it do anything to advise the public of the dangerous :character of this slack-pile. or to prevent persons or stock from getting into it. In this state of things the plaintiff, then less than 13 years of age, visited Erie with his mother, who stayed at the hotel of the village. While there, he went over to this mine out of curiosity and a desire to see the mode of operating it. While at or near tbelllouthof the mine someminers,men or boys, in their mining costumes, came OQt oUhe pit, and in. sport or in earnest, it is immateapout blacking or greasing him, probably rial which, said advanciugon him at tQe same time. the plaintiff rantqwards th.e village, anqin crossing, the space betwel;)u the railroad tracks
M'DOlSALD V. UlSION PAC. RY. CO.
·581
missed the path, ran into the slack-pile, and was burned in the manner detailed in the evidence. It is not claimed the plaintiff had any notice or knowledge of the fact that there was any fire in the place where he received his injury , or that by the exercise of reasonable care and diligence he could have seen or discovered the fire. The law made it the duty of the defendant to fence its slack-pile, and, if it did not do so, and as a result of its negligence itt failing to comply with its legal duty in this regard the plaintiff received the injuries complained of, the defendant is liable. Persons are entitled to the protectioll which would accrue from a compliance with the statute, and the plaintiff had a right to presume the space between the railroad tracks W3snot a burning slack-pile, because it was not fenced. It was the legal duty of the defendant to fence the burning slack, and its omission to do so was negligence. The defendant being guilty of negligence, your next inquiry will be whether the plaintiff was guilty of any such negligence as will prevent him from recovering; for it is a principle of law that one injured by the negligence of another cannot recover damages for such injury if by his own negligence he contributed to the injury. Upon the undisputed facts of the case, it was not an act of negligence for the plaintiff to visit the defendant's coal mine as he did, and he was not a trespasser there in a sense that would excuse the defendant for the acts of negligence by which he was injured, and which I have heretofore adverted to. Nor was it an act of negligence for the plaintiff, under the circumstances, to run away from the miners. A boy may lawfully run to avoid injury, or when frightened or in play, and the fact that the plaintiff was running on the occasion of his injury does not constitute negligence on his part. He undoubtedly had a right to run towards the hotel where his mother was stopping.. Nor was it negligence in him when he did run not to follow exactly a rough, irregular, and narrow path leading from one railroad: track to the other. There was nothing in the surroundings to inform him, or any other person having no previous knowledge of the facts, that he would incur any risk or danger in not keeping in the path in crossing the space between the railroad tracks. And if you find he did not see the fire, and could not, with the exercise of reasonable gence, discover it, and did not know it was there, and that the surface of the slack-pile apparently presented a safe footing and passage, then he was not guilty of any negligence in attempting to run across it. The disputed issue in the case is the question of damages ,-what damages you shall award. And first, gentlemen, you will compensate the plaintiff for the pain and Buffering he endured by reason of the injuries I he received on this occasion. If a man takes from you your horse, there is a measure for your damages in that case, because you can call witnesses who have some knowledge of horses and their value, and, prove the value of your horse. If a man takes from you a dred bushels of wheat, there is a measure of computing the damages. In that,caee you do not even have to call witnesses to do it. You DJay take into court the price-list or price-current, as it is called'; and show
582
FEDEHMj;
;
what the value of wheat was in ;t,hewheat market at the time your wheat was taken, and that settles it. But there is no there is no price-current, forpain,.for human suffering. You do not have to ·put awitriess upon the , ,You .cannot put a witness upon the stanil ,andask him the value of suffering for an hour, for a day, for months, or for ,years. You do not have to call any witness for that. The value that shall be put upon pain and suffering is left to you, gen;' ,to your own goodcomnion, ,sense and experif-nce iYoU value that-that iS j award damages forit__from your Qwnknowledge, and upon your own judgment, unaided by any witness i fot the law cannot call a witness to aid you. :;! And that is one item of the plaintiff's damages. He is entitled to compensation for the pain and suffering he endured immediately after the injury, at the time of the injury, and afterwards, down to the present time, and any pain or suffering that you find from a preponderance of the evidence that he may have to endure in the future. He is entitled, as another item, tocompensatic1lD for any expenses that he may pave been put to on account of this injury, and which have been proven ito you by the evidence. , He is entitled, to compensation for the loss of time, and the value of that time, whatever the evidence shows, if anything, resulting from this injury ; ,not only the loss of time from the time he received the injury down to the present time, but his loss of capacity. if any, to earn, by the Ol'dinary pursuits of life open to a young man of his knowledge and condition in life, a living in the future, if these injuries are permanent. If you find, by a preponderance of evidence, that they have resulted in the infliction of permanent injuries, which impair his capacity or ability to work or earn wages in the future, you will take that into account. These are the items of damages ,you take into consideration. You take all the circumstances, all the facts proven j his age; the character of the injuries with reference to their. being permanent or not; and, if permanent, what is the degree of disability imposed by them; and all like considerations you will take into the account when you come to determine the compensation that )'OU will award to the plaintiff for these injuries. The plaintiff's attorney has said to you, gentlemen, that he claimed and that you ought to award more than a compensation. He is not content withcumpensatory damages; that is, the damages you shall find and award to him for his pain and his suffering, for his expenses, for his loss of time, for the disability that he sustained, if any. He says those are not elements enough, but that in addition you should award him damages as a punishment to this defendant for not having complied with the statute. That you cannot do, gentlemen. That claim is not supported by.the law. It is, moreover, in the very teeth of- the statute of the. state under which it is claimed; for that statute in terms says ,that the persons or the corporations neglecting to fenee shall be liable to any party injured thereby "in the amount Of theaotual injury sustained, "-thus in terms cutting oft' exemplary damages.
M'DONALD V. UN lOX PAC. RY. CO.
583
Now, gentlemen, I need scarcely say to you that you will decide this case precisely as you, would if two of your neighbars were the parties, and in:l1o other light or sense; you will give to the plaintiff nothing because he is a natural person, a youth or a boy, just for that reason lout oCsynipathy for him; and you will add nothing to his verdict because the defendant is a -corporation. You will decide this case as though it' was a case between two natural persons. The law, gentlemen, is an' utter stranger to sympathy, and an utter stranger to prejudice; arul'the court or the jury that'lets either sympathy or prejudice creep into their mi'nds in the decision of a cause submitted to them commits a very grave mistake. You are the sole judges of the facts. Consider all the testimony, and in the light of aq the testimony on the subject of these injuries, and their extent, determine what is a fair,just compensation to the plaintiff for the injury ,he has sustained. That will be the amount of your verdict. Mr. Teller. I suggest the question to which I called your honor's attention as to what, at least, the character of the evidence would show about the impairment of his powers. - I ;think they ought to be instructed somewhat on that. The Court. I think not. 1 think the general instruction covers the ground. I say to you again, gentlemen, you are the judges of facts. You give such weight to the testimony of each witness as you think it entitled ,to. It is from that evidence you must determine for yourselves the character of these injuries, and the amount plaintiff is entitled to recover. ON MOTION FOR NEW TRIAL.
CALDWELL, J. This case has been submitted on a motion for a new trial. The grounds assigned for the motion are misdirection of the jury as to the law, and excessive damages. The facts in this case which determine the legal liability of the defendant were not controverted at the trial, and are not controverted now. There is no ambiguity or conflict in the evidence relating to the question of the defendant's negligence. The controversy turns on the rules of law applicable to the uncontra- . dieted facts, and as to whether the jury. were warranted by the evidence in assessing the plaintiff's damages at the sum of $7,500. The law applicable to the facts of the case was correctly expressed in the charge to the jury. Bennett v. 'RfLilroad Co., 102 U. S. 577; Railroad Co. v. Stout, 17 Wall. 657, 2 Dill. 294. _ As to the damages, it was quite clear to my mind upon the evidence, and from an inspection of the plaintiff's head, hands, and arms on the witness stand at the trial, that the injuries he received were not slight or superficial, buttbat they were serious, anc;) had resulted in permanent to his urinary organs, and impairment of his sight, permanent permanent loss -of strength in his hands and arms, and, probably, a per manent affection of his whole nervou!lsystem. The court was askedt'c? instruct the jury that there was not sufficient evidence to warrant them in finding plaintiff's injuries were permanent. That instruction was raN