97 F. 423 | 8th Cir. | 1899
after stating the case as above, delivered the opinion of the court.
After several witnesses had testified that the roadbed and the railroad track of the plaintiff in error from the top of the hill east of Sycamore to the water tank in that city, where the collision occurred, were in a poor condition; that some of the ties were rotten, and that many of the spikes were loose or lost; and after Charles A. Field had testified that he was a locomotive engineer, that he had been in the employment of the plaintiff in error for 11 years, that he was running a suburban train from Chicago to Sycamore at and before the time of the accident, that he knew the condition of the road from the top of the hill to the water tank, that it was in bad condition, and would sway a train as it passed over it, — -the trial court permitted him to testify, over the objection of the company, that the rough and uneven condition of the track was liable
The theory of the defendant in error at the trial was that the fire was communicated to the flowing liquid, and that the explosion was caused, by fire from the dining car which stood on the spur track about eight feet south from the tank from which the inflammable fluid escaped. The theory of the plaintiff in error was that the fire was set to the liquid by Price’s lighted lantern, and that it was his negligence in approaching the fluid with this light in his lantern that caused the fatal result. In order to prove that the theory of the defendant in error was unfounded, the railroad company introduced evidence to the effect that no fire and no coals were taken or escaped from the dining car. The plaintiff in error complains that the court subsequently permitted the administratrix to prove by one Hibbard, who was a locomotive engineer, that he had pulled tanks of gasoline with his engine, that brakemen with lighted lanterns had inspected leaking tanks, and that he never knew of a case in which the light from a brakeman’s lantern caused the liquid to take fire. The objection to this testimony was that it was not proper testimony in rebuttal. But the record shows that the testimony of another witness to the same effect had already been received in rebuttal, without challenge, before this objection was presented, and
It is assigned as error that witnesses were permitted to testify in rebuttal that they saw a danger signal — a red flag — between Sycamore and the top of the hill a month or more before the accident occurred. But the entire question of the condition of the railroad at this place, of the repairs that had been made upon it during many months prior to the accident, and of the daily work of the section men upon it was before the jury, and the testimony upon every phase of it was in conflict. This testimony would have been competent if it had been introduced in chief, and in this state of the case a trial court has much discretion in the admission of rebutting testimony. It was guilty of no such abuse of this discretion here as would warrant a reversal of this judgment.
There are other assignments of error regarding the admission and rejection of evidence. They have all been carefully examined,, and found to be untenable. They are either disposed of by the views which we have already expressed, or they are of insufficient importance to warrant their statement and discussion.
The chief reliance of counsel for the plaintiff in error is not upon their objections to the testimony. It is upon their contention that the court below should have instructed the jury to return a verdict in favor of the railway company. They insist that there were many questions presented by the evidence and submitted to the jury which it was error for the court to refuse to decide, and that, if it had decided any one of them, the logical and unavoidable result would have been a peremptory instruction in favor of the company. The assignments of error which refer to this matter are numerous and voluminous. They assail various portions of the charge of the court, its refusal to grant numerous requests for instructions, and its failure to peremptorily instruct the jury in favor of the company. But, when they are carefully analyzed, they all come to this: that for one reason or another the court erred because it did not direct a verdict for the railway company. Before entering upon a discussion of the questions which these assignments present, it is well to call to mind the established rules by which they must be determined. It is conceded that at the close of the evidence there is always a preliminary question for the judge before the case can he properly submitted to the jury, and that is whether or not there is any substantial evidence upon which the jury can properly render a verdict in favor of the party who produces it, and that, if there is no such evidence, it is the duty of the court to direct the jury to return a verdict against him. Commissioners v. Clark, 94 U. S. 278, 284; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 733, 8 Sup. Ct. 266; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Laclede Fire-Brick Mfg. Co. v. Hartford Steam-Boiler Inspection & Insurance Co., 19 U. S. App. 510, 515, 9 C. C. A. 1, 4, and 60 Fed. 351, 354; Gowen v. Harley, 12 U. S. App. 574, 585, 6 C. C. A. 190, and 56 Fed. 973; Motey v. Granite Co., 36 U. S. App. 682, 686, 20
It is claimed that the court was wrong in submitting to the jury the questions whether or not the railroad track was in bad condition where the train parted, between the top of the hill east of Sycamore and the water tank in that city, whether or not the poor condition of the track caused the train to part, and whether or not the negligence of the company in the care of this track was the proximate cause of the fire, the explosion, and the death of Price. The charge of error in submitting the first two questions is refuted by the fact that five witnesses testified that in portions of this track many of the ties were rotten, and that many of the spikes which should have held the rails to them were loose, or entirely out, sb that, as some of them said, the rails would sink into the ties and roadbed as trains passed over them; and four witnesses testified that the roughness and unevenness of this track, produced by the rotten ties and loose rails, had a tendency either to throw pins or break couplings as heavy freight trains passed over it. All this testimony was contradicted, it is true, but, after all, it was ample to raise a dispute over these issues, and to make it the imperative duty of the court to submit them to the jury. The third question —the question whether or not the roughness of the road was the proximate cause of the fire, the explosion, and the death — must be considered in the light of the finding which the jury must have made that the company was negligent in the care of this portion of its railroad. The proximate cause of an injury is the primary, moving cause, without which it would not have been inflicted, but which, in the natural and probable sequence of events, and' without the interposition of any new or independent cause, produces the injury. The nature of this cause, its relation to its effect, and the difficulty and perplexity which often condition its discovery, have been so frequently and exhaustively considered and illustrated by this court that a mere reference to some of the opinions which treat of these subjects will amply elucidate the brief definition we have
“The true rule is that wliat is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. * * * In the nature of tilings, iliere is in every transaction a. succession of events more or less dependent upon those preceding-, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies: and this must be determined in view of the circumstances existing at the time.”
To the same effect are Insurance Co. v. Melick and Railway Co. v. Callaghan, supra. Now, it is common knowledge that the burning of ears, the ignition and explosion of inflammable liquids carried upon them, and the death of men who ride in or on them are sometimes caused by the collision of engines or of the ears which compose the trains which they draw. In the case at bar Hie railroad was found by the jury to have been rough and uneven. There vas evidence that this roughness tended to break a coupling or throw a pin in a heavy train as if passed over it. Such a train parted as it was running over this rough track. The separated sections collided, and tore open a tank of inflammable fluid which the train carried, and the liquid flowed out. There was a rule of the company which required the rear brakeman to be on the top of his train as it came down the hill to the place of this collision, and another rule which made it the duty of the conductor to enforce the former rule. The rear brakeman testified once that he was in his place on the top of the train, and he afterwards testified that he was not there, and that these rules were violated by the conductor’s direction. There was testimony that the conductor was warned of the danger of approaching the flowing liquid with his lantern after the collision, and that the witness who gave this testimony uad stated that lie gave him no such warning. It was night. Engines carry fire to draw their loads, and trainmen carry lights in their lanterns to see their trains. The conductor walked along the side of Hie train with his lighted lantern in his hand, as is customary in the night, for the purpose of discharging his duty of watching and attending to the property in his charge. The inflammable liquid which had spread over the ground took fire, exploded, and killed him. There was testimony that fire could not have been communicated to it from the dining car. There was testimony that it could not have been communicated from the lantern.
It is said that this is a transitory action, that its cause arose in the state of Illinois, that the rule in that state is that the complainant must allege and prove that the party injured was without fault on his part, and that the court below was in error because it did not charge the jury in this case to return a verdict for the company on the ground that the defendant in error did not plead or prove that the deceased was not guilty of negligence which contributed to his death. But the rule of the national courts is settled and uniform that contributory negligence is an affirmative defense, which must be established by a preponderance of evidence. It may appear from the testimony introduced by the plaintiff, or from that presented by the defendant, but, in the absence of all evidence on the subject, it is no fault or defect of the plaintiff’s case that he fails to plead or prove that the defense of contributory negligence does not exist. In the jurisprudence of the national courts he is not called upon to establish the negative. Railroad Co. v. Gladmon, 15 Wall. 401, 406; Railroad Co. v. Horst, 93 U. S. 291, 299; Eddy v. Wallace, 4 U. S. App. 264, 273, 1 C. C. A. 435, 440, and 49 Fed. 801, 804.
Another claim is that, if the ties were rotten, if the spikes were loose or lost, and if the railroad was rough and uneven, and therefore dangerous, Price must have known it, and must have assumed the risk and danger of its condition, and that the court erred because it did not so instruct the jury, and because it left the question of his assumption of the risk for their determination. It was the duty of the railroad company to exercise ordinary care to furnish a reasonably safe railroad, and to use ordinary care to inspect and to keep it in a reasonably safe condition for the operation of
There was a rule of the company which required the brakemen to he on the top of their train as it came down the hill into Sycamore, and which directed the conductors to see that their brakemen complied with this rule. There were on this train an engineer, a head brakeman, a rear brakeman, and the conductor, Price. The rear brakeman testified that Price told him not to go out on the top of the train as it came down into Sycamore, and that he and
“If, however, the evidence fails to satisfy you that Mr. Price told Mr. Stewart [who was the rear brakeman] not to go on top of the train, even if Stewart did not go on the top of the train, if the fact was not due to the negligence of Price, but of Stewart acting without the direction or contrary to the direction of Price, that would be negligence of Mr. Stewart, and not chargeable to Mr. Price, as contributory to the accident.”
This portion of the charge is assigned as error, and it is insisted that the evidence here conclusively shows that Price was guilty of contributory negligence, and that the court should have instructed the jury to that effect. There are two reasons why we are unable to sustain this assignment. One is that the testimony of the rear brakeman as to his position was so contradictory, and the motive for him to excuse his own delinquency, by laying the fault on one whose lips were closed forever, so strong, that we are by no means convinced that all reasonable men would conclude from this evidence that Price told him not to obey the rules of the company. He testified at one time that he was on the top of the train all the way from a point two miles east of Sycamore until he reached the city, and at another time that he was on the rear platform of the caboose during all this time. Both of these statements were not true, and, if he testified falsely on one material issue, the jury and the court were permitted to disbelieve his testimony upon another. The credibility of such a witness, and the effect that should be given to his testimony, were questions peculiarly within the province of the jury. Another reason why the assignment cannot be sustained is that, if it were conceded that it was Price’s negligence which prevented the rear brakeman from occupying his place on the top of the train, it is so doubtful, under the evidence, whether or not he would have discovered the parting of the train before the collision, if be had been on the top of it, so that he would have stopped the rear section; in other words, it is so doubtful whether or not the neg
After the collision occurred, Price took his lantern, and went forward on the south side of the train, to learn- what had happened, and to care for the property in his charge. The engineer of the waterworks at Sycamore testified that, as the conductor was walking along the side of the train towards the escaping liquid, whose flowing was audible, be said to him, “You had better not take your lantern if you are going np there; you might set it on fire;” but that the conductor went on with his lighted lantern, and was killed. This witness had testified to the same facts before the coroner's jury. Two witnesses came, who said that between the time when this engineer gave his testimony before the coroner’s jury and the time of the trial he had told them that he was mistaken in his testimony before the coroner’s jury, and that he did not warn Price not to approach the flowing liquid with his lighted lantern. There were also two witnesses who testified to the effect that a fire in a lighted lantern such as the conductor carried would not ignite gasoline or a like inflammable fluid which liad leaked out of a tank upon the ground if the lantern was supplied with a globe, and was in good order. The court submitted the question to the jury whether or not Price received the warning, and whether or not, under all the circumstances of the case, he was guilty of contributory negligence in going forward with his lighted lantern to the place where the liquid had (lowed out over the ground. It. is insisted that this was error, and that the court should have instructed the jury that his act in approaching the flowing liquid with his lantern was negligence which contributed to bis death, and which entitled the railway company to a verdict. But when the collision occurred it was the duty of Price Lo go forward along his train, to find out what damage had been done, to prevent more injury, and to protect and preserve the contents of the tank, and the other property on his train. It was night. He could not see clearly without his lighted lantern. Whether or not he was warned of the danger of approaching the escaping fluid was a disputed question under the evidence. There was testimony that the gasoline could not have been ignited from the dining car, and that it could not
The discussion and decision of the questions which were presented in this case are now concluded. Their consideration has led to repeated readings of the evidence and of the charge of the court, and our conclusion is that the trial was full and fair, that there was no error in the admission or rejection of evidence, and that the charge of the court was not only a correct declaration of the principles of law involved, but a clear, terse, and logical presentation and application of them to the salient issues of the case. If, however, we had been led to doubt the correctness of any of those portions of the charge of the court which have been challenged, or of its refusal to direct a verdict for the defendant, or to give any of the refused requests for instructions presented to it on account of any of the reasons alleged by the counsel for the plaintiff in error, the judgment could not have been reversed upon the record before us. The correctness of all these rulings depends upon the evidence before the trial court. The record discloses the fact that only a portion of this evidence has been returned to us. Thát which is found in the bill of exceptions and in the record is in narrative form, and the certificate is limited to the statement that “the foregoing is substantially all the evidence.” A certificate that the substance of the evidence is returned is not sufficient to warrant the appellate court in reversing a judgment on the ground that the trial court refused to direct a verdict. Railroad Co. v. Washington, 4 U. S. App. 121, 131, 1 C. C. A. 286, 292, and 49 Fed. 347, 353; Railway Co. v. Harris, 27 U. S. App. 450, 457, 12 C. C. A. 598, 603, and 63 Fed. 800, 805; Taylor-Craig Corp. v. Hage, 32 U. S. App. 548, 16 C. C. A. 339, 340, and 69 Fed. 581, 582; Association v. Shryock, 36 U. S. App. 658, 664, 20 C. C. A. 3, 6, and 73 Fed. 774, 777. “The burden of proof to show that there was no evidence to warrant a charge is on him who asserts an error of that character; and, if he would maintain his claim, he must either present all the evidence to the appellate court, so that the reviewing court can see for itself what the evidence was, or he must present a bill of exceptions which has the certificate of the trial court that no evidence of the character in question was presented to it.” U. S. v. Patrick, 36 U. S. App. 645, 656, 20 C. C. A. 11, 17, and 73 Fed. 800, 806.
The judgment below is affirmed.