13 F. 591 | U.S. Circuit Court for the District of Colorado | 1882
Gentlemen of the Jury: It is your province and duty to determine the facts of this case in the light of the evidence which you have heard, and of the law, which the Court will now state to you. The plaintiff sues the defendant to recover damages, upon the ground that he has been injured in his person, by reason of the negligence of the defendant, the Union Pacific Railway Company.
You will observe, therefore, gentlemen, that the question which lies at the foundation of this suit, and which you must decide as a question of fact, is a question of negligence. If the plaintiff has failed to establish, by a fair preponderance of the proof, that his injury was the result of the negligence of the defendant, he cannot recover; but if he has established that fact by a preponderance of evidence, he may recover..
Negligence is the want of that care and prudence which a man of. ordinary intelligence would exercise under all the circumstances of the given case. You may consider the question of negligence in this light: Whether a man of ordinary care and prudence would have done the acts which are shown by the evidence to have been done by the defendant railway company, and of which this plaintiff complains. You must be satisfied that the defendant company was negligent, and also that the plaintiff’s injury was the result of that negligence, or,
It is insisted by counsel for the plaintiff here, that there is a well known disposition among men to place such an article as a push car upon the track when they find it by the side of the track. There is no such disposition with regard to the other articles of which I have spoken; but with regard to an article of this character, it is for you to say whether there is such a well known disposition among men as is claimed by the counsel for the plaintiff. If that be a fact so well known that it is a matter of general understanding and general knowledge, then the defendant was bound to take notice of it, and to act upon it. And so you will come to the question, whether, when the push car was left in that position, the railroad company was bound to know, bound to anticipate, that it might be placed upon the track, and thereby that someone might be injured.
The rule with regard to the negligence of fellow servants, to which some reference has been made, I think has little, if anything, to do with the case. There is, I suppose, very little question that the company here either had no rule requiring a push car to be locked, or that, if they had such a rule, that it was not observed—in other words, there was no rule or practice of the company that required the foreman of this division to lock his car. He left it by the side of the track, as 1 apprehend you will have no difficulty in determining, upon the evidence, in accordance with the usual custom in such cases upon that road. Now, if there was negligence at all, under such circumstances as that, it was the negligence of the company in not having some rule requiring the locking of cars when left by the side of the track, and that is the question for you to determine. It is true, as counsel for the defendant has stated in discussing this question of proximate cause, that if there is any intermediate independent cause to which the injury can be attributed, then the company is not liable. But that is but another way of stating the rule that I háve already stated, because, if the company was bound to anticipate that there was
If you find for the plaintiff, you will then come to the question of damages. In determining that, you will consider the pain and suffering to which he has been subjected, both mental and physical, the loss of time and loss of wages which has resulted from his injury, the nature and extent of his physical injuries, their effect upon his ability to earn his living since the accident as compared with his ability to do so before, and the probable effect of those injuries upon his future health and strength. Under all these circumstances, and in view of all these facts, you will estimate the damages, and give him such sum as you think will be a reasonable, not an unreasonable, compensation.
You have nothing to do, gentlemen, with the fact that this case has once been tri'ed in this Court, or with what some other