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DOYLE v. BOSTON & A. R. CO.

(Circuit Court of Appeals, First Circuit.

October 6, 1897.)

No. 144.

1. Issue oe Negligence ■— Burden oe Pkooe — Instruction — Contributory Negligence.

Where the real issue, as made before the jury, was ihe negligence of the defendant, it was not error for the court to charge that the burden of proof of the entire case was on the plaintiff, and to refuse to charge that the burden of showing plaintiff's want of care was on defendant.

*8702. Negligent Starting or Train — Notice to Passenger — Instructions, and Refusal.

The question of the conductor’s negligence in starting the train and giving plaintiff notice having been submitted to the jury in a charge sufficiently clear and explicit, it was not error to refuse 'to instinct the jury that, if the conductor shouted “All aboard,” it was proper for them to consider whether or not plaintiff might not reasonably suppose the train would not start until he had an opportunity to board it.

3. Negligence of Employes — Defective Platform and Lights — Effect of Instruction.

In an action for personal injuries alleged to result from the negligent starting of a train, and failure to provide suitable platform and lights, the question of negligence arising from defective platform and lights, having been submitted to the jury, was not withdrawn from their consideration by a charge that “this case must be treated precisely as though this suit had been brought directly against the conductor and engineer, if the accident happened through the fault of the conductor and engineer.”

4. Instructions — Expression of Opinion by Judge.

Where other questions were involved, but the gist of plaintiff’s case, on the pleadings and evidence, was the negligent starting of a train, it was not error for the court to so state to the jury, where he clearly informed them that they were the judges of the fact, no matter how strongly he might express his personal views thereon.

In Error to the Circuit Court of the United States for the District of Massachusetts.

Richard M. Saltonstall and E. Eugene Bolles, for plaintiff in error.

Samuel Hoar and G-eorge P. Furber, for defendant in error.

Before COLT, Circuit Judge, and WEBB and BROWN, District Judges.

COLT, Circuit Judge.

This was an action by a passenger against a railroad corporation for personal injuries. The injuries were received at a station known as Riverside, on the evening of August 19, 1893, while the plaintiff was in the act of boarding the defendant’s train. The verdict was for the defendant, and the plaintiff tendered a bill of exceptions, and sued out this writ of error. Before coming to the consideration of the errors assigned, it may be observed that they are generally open to the criticism of not giving all that the court below said in its charge to the jury upon the. particular point to which exception was taken. It is not a sufficient ground for error to take a single sentence or passage from the charge, disconnected from the general context, or from what precedes or follows. In determining whether the court below was right or wrong, we must examine the whole context, in order to find out what was in fact the ruling. The numerous errors assigned may be considered under several general heads:

1. The court refused to instruct the jury that the burden of proof was upon the defendant to show that the plaintiff was not in the exercise of due care at the time of receiving the injury complained of, and that the defendant must show this by a fair preponderance of the evidence, or the plaintiff is entitled to recover, so far as his own negligence is concerned; but the court did instruct the jury as follows:

“The plaintiff is to 'prove his entire case, as I shall submit it to you. by a preponderance of evidence.” “I do not withdraw what I said to you, — that the burden of the proof of this entire case, as I submit it to you, is on the plaintiff.”

*871As the case was submit fed, if no question of care on the part of the plaintiff was left: for the consideration of the jury, the plaintiff was not injured. The declaration contained two counts. In both counts the injury was alleged to have been caused by the defendant’s carelessly starting the train while the plaintiff was about to board it. The second count further declared that the defendant was negligent in not providing suitable platforms, lights, and other facilities for passengers alighting from and taking trains at this station. The evidence in the case was directed mainly to the point whether ¡.lie defendant was negligent in starting the train. Upon the pleadings and proofs, we think the court below properly held that the question did not arise whether the plaintiff was in the exercise of ordinary care at the time of receiving the injury. The only real issue before the jury was the negligence of the defendant, and upon this issue the burden of proof was upon the plaintiff. The language of the court, therefore, was proper and unobjectionable. This instruction was favorable to the plaintiff, because it eliminated from the consideration of the jury one ground of defense, namely, that, assuming the defendant was negligent, the plaintiff’s right of recovery could still be defeated by proving that he was not in the exercise of ordinary care at the time, of receiving his injury. But in fact, as appears in (lie charge printed in the record, but not noticed in the bill of exceptions, the court did instruct: the jury on the question of the plaintiff's negligence, and the rule of this court as to the burden of proof on this issue1, as follows:

“I do not recollect any point at wliicli the question of the plaintiff's care comes up, but, inhere is any point where it comes np as a ground of defense, the burden is on tlie defense; and 1 instruct you now, as requested by the plaintiff Hull ‘the burden of proof is not upon the plaintiff to show that he himself was in the exercise of due care at the time of receiving the injury, hut. if the defendant claims the plaintiff’s neglect contributed to the injury, the burden of proof is on the defendant to show Uiat fact.’ ”

If either party had cause to complain that, the consideration of the plaintiff’s negligence was taken from the jury, it was the defendant In its answer such negligence was alleged as a ground of defense, and upon (he whole evidence the defendant might well have insisted that the jury should pass upon it. If the verdict had been for the plaintiff, it would have been a serious question whether the defendant ought not to have a new trial.

2. The court refused to instruct the jury as follows:

“If the conductor, prior to starting the train, s'homed ’All aboard,’ it is proper for you to consider this fact in considering whether or not the plaintiff, if lie was then in or upon the premises where passengers might properly wait, might not reasonably suppose that the train would not start until lie had an opportunity to board it forthwith after hearing said warning.”

While the judge refused this request in the form in which it was stated, he did leave the question to the jury whether the conductor, under the circumstances, was negligent in shirting the train, and whether he gave the plaintiff sufficient notice before starting. We rhink the charge of the judge on this point was sufficiently clear and explicit, and that he properly refused to give the instruction in the terms in which it was prayed for.

*8723. It is urged that tbe court did not properly submit to tbe jury, as a ground of action, tbe alleged negligence of tbe defendant by reason of defective platforms and lights, contained in tbe second count of the declaration, but did charge as follows:

“Tlie burden of this ease, as I will show you, is upon the proposition that the train started with a jerk.” “As the case stands, if the train had not started with a jerk there would be no case.” “'l’he second count also contains what I will read to you from the first, ‘Just as the plaintiff was taking the train, it started,’ and which X say is the pith of the case.”

We think tbe court was entirely justified in tbe use of this language in tbe connection in which it was used in tbe charge. The real point in the case was tbe negligence of tbe defendant in starting tbe train. This is conceded in tbe plaintiff’s brief, in the following words:

“The gist of the plaintiff’s claim, upon the pleadings and evidence, was that the train was carelessly started.”

But in fact tbe court did submit to tbe jury tbe question of defective platforms and lights, contained in tbe second count. Tbe judge said:

“There are two counts, which differ in certain particulars. The second count contains allegations touching the condition of the platform, and touching the condition of the lights. I do not know that there is any evidence here that the condition of the platform, if it was in an incumbered condition, contributed to this accident. The matter of lights is one of those things about which the court is unable to form any proper conception. It is one eminently suitable for you to determine. * * * The first count only alleges that the train started, and that that was the cause of the accident. The other count charges the condition of the platform, the want of light, and the starling of the train-all three. Now, gentlemen, under the second count the plaintiff is' not bound to prove all three; he may prove one, two, or three of those allegations, provided you are satisfied they contributed to the accident.”

4. It is urged that tbe court erred in charging tbe jury, in substance, that tbe fault of tbe railroad- company was tbe fault of tbe conductor and tbe engineer, and that “this case, must be treated precisely as tbougb tbis suit bad been brought directly against tbe conductor and tbe engineer, instead of against tbe railroad company.” But the qualifying words of tbe court, “if the accident happened through tbe fault of tbe conductor and engineer,’’ are omitted in tbe assignment of errors. In tbis, as in others of tbe errors assigned, where tbe whole context is examined tbe charge of tbe judge is found to be, unobjectionable. As tbis proposition,was in fact stated to tbe jury, it cannot be said that tbe court took away from their consideration tbe question of negligence arising from defective platforms and lights, for which neither tbe conductor nor tbe engineer was liable. - Nor did tbis passage in tbe charge contain an erroneous statement of law. It simply referred to tbe rule in tbis class of cases that tbe fault is tbe fault of tbe servant alone, and that on grounds of public policy tbe master is held responsible for tbe fault of bis servant.

5. The comments of tbe court on the evidence are assigned as error. We find nothing in those statements which was unfair to tbe plaintiff. Further, it appears that all questions of fact were finally left to the jury. In tbe comments on the evidence'set out in the twentieth assignment of error tbe court said, “You [tbe jury] will consider, it is a matter for you to determine,” etc.; and in the comments referred to *873in the twenty-first assignment the court said: "Yon are to determine whether that is true.” “You are to judge* whether or not the conduct- or did not give this man ample time.” The judge charged the jury generally on this subject as follows:

“►So, gentlemen, It may be, in the course of tlie charge, I shall direct you upon certain questions of fact as well as upon certain questions of law, that you ought to find so and so, and, if I do, I will make it clear at tlie time that I inrend so to direct you, and yon must follow my directions; hut unless I say to you, on a certain proposition of fact, that you must find the facts so and so, you are to understand you are the judges of the fact, no matter liow strongly, as I go along, I may express my personal views upon certain questions.”

The expression of an opinion by the judge in submitting the case to the jury, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to tlie determination of the jury, cannot be reviewed on a writ of error. Railroad Co. v. Putnam, 118 U. S. 545, 553, 7 Sup. Ct. 1. Judgment of the circuit court affirmed.

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