49 F. 209 | 8th Cir. | 1892
The defendant in error brought suit against the Little Rock & Memphis Railroad Company (hereafter called the “Little Rock Company”) and the Kansas City, Fort Scott & Memphis Railroad Company (hereafter called the “Kansas City Company”) for personal injuries sustained in consequence of a collision between trains of the respective companies at a crossing of the two roads in the state of Arkansas, a few miles west of Memphis, Tenn. A westward-bound passenger train of the Little Rock Company was going over the crossing
The first error assigned is the refusal of the circuit court to give the following instruction, which was asked by the plaintiff in error:
“It was the duty of the employes operating the passenger train to come to a full stop within a reasonable distance of the crossing, and to both look and listen for any train that might be approaching it on the other road. It was also their duty, after stopping and looking and listening, to approach the crossing with caution, keeping a vigilant lookout to see or hear trains that might be on the other road. If the engineer saw a train on the Kansas City road before or at the time his engine reached the crossing, it was his duty to observe it closely, and determine whether it was in motion, and be certain that it would not collide with the train which he was pulling before he proceeded over the crossing, or drew the cars containing the passengers onto the track. If he failed in the performance of any of these duties, it .was negligence for which the Little Rock & Memphis Railroad Company would be liable. ”
We are of the opinion that the Kansas City Company is not entitled to complain of the refusal to give the foregoing request, even though we concede that it properly describes the various precautions which the persons in charge of the passenger train should have taken. The case ■was submitted to the jury under directions from the court which properly defined the relation existing between the defendant in error and the Kansas City Company, as well as the degree of care that the latter company was’ bound to exercise when its freight train approached the crossing. Under such instructions, correctly defining the duty of the plaintiff in error, the jury have found that the collision was the result of its negligence.
It may be that the Little Rock Company was equally culpable, or that the higher degree of care it owed to the defendant in error, by reason of his being a passenger on its train, would have warranted a verdict against it as well, as against the Kansas City Company, and that such verdict would have been rendered had more specific instructions been given. But this plea cannot avail the plaintiff in error, for the reason that it is liable for all the injuries the defendant in error has sustained, if its negligence directly contributed to the collision, and that it did so contribute has been established by the verdict of the .jury under instructions correctly defining its duty, as to which no exception was'
The plaintiff in error asked the circuit court to charge the jury in substance as follows: That its employes in charge of the freight train were only bound to exercise ordinary prudence; that in determining whether such degree of prudence was exercised, the jury should take into eonsideiation all the circumstances of the situation; and that, if they did exercise ordinary prudence, the Kansas City Company was not liable, “although the jury found that they performed some acts or omitted others lohieh in the light of subsequent events * * * would have prevented the collision.”
The court gave the several directions contained in the request except the concluding clause, which is in italics. Such action is assigned as error.
We are of the opinion that the assignment is not tenable. It will be observed that the concluding paragraph tas no necessary relation to the preceding propositions of law stated in the request. It neither qualifies nor explains them, but is an abstract proposition, not directed to any, particular matter or fact in controversy. To speak more accurately, it was simply a general admonition to the jury that the quality of an act alleged to be negligent ought not to be determined exclusively in the. light of subsequent events. That may be, and no doubt is, a very proper admonition to be given in certain cases, especially in a caso where the jury might be in doubt as to whether the act of omission or commission counted upon amounts to culpable negligence. Express Co. v. Smith, 38 Ohio St. 519. But if an instruction of that character is sought, it should be preferred in' the form of a separate and independent request; and, in any event, we conclude that the present record does not disclose a state of facts which rendered such an admonition either necessary or appropriate.
Error is also assigned because of the refusal of the circuit court to grant the following request:
“There is no presumption of negligence as against the Kansas City Company arising from the fact that the collision occurred. The plaintiff must show by a preponderance of the testimony that it was guilty of negligence which was a direct cause of the injury.”
We are of the opinion that this assignment is not tenable for the following reasons: The collision occurred in broad daylight, at a level crossing, between two regular trains of the respective companies.. No”
Complaint is further made that the lower court refused the following request:
“The plaintiff is entitled, to recover only for such future consequences of the injury inflicted on him as the proof shows you are reasonably certain to ensue. Damages should not be assessed for merely possible, or even probable, future effects not now apparent. ”
We think this request was properly refused, because it was liable to mislead the jury. The first paragraph of the request states a correct proposition, applicable to the assessment of damages. The last clause, however, declares that “damages should not be assessed for * * * probable future effects not now apparent.” This was liable to be understood as meaning that there ought to he no allowance made for the probable effects of an injury, unless the effects are so apparent at the time of the trial, or so manifest, as to be absolutely certain to occasion loss, and not merely reasonably certain. .In other words, it limits and might have put a false color on the preceding proposition. As the court had already given the jury very full and fair directions as to the assessment of damages, we think it was under no obligation to give the direction last above mentioned.
Finally, it is said the circuit court erred in the following extract from its charge:
“Speaking of negligence, I will say to you, in the language of the Little Rock & Memphis Railroad Company: ‘The only acts of negligence on the part of the defendants, or either of them, that will be considered by the jury, are those which in some way contributed to the injury complained of by the plaintiff. Any other acts not so contributing will not be regarded by you.’ That, gentlemen of the jury, in substance should govern you in your deliberations in this case. Unless an act or omission contributed to the injury, directly or indirectly, it must not be considered by you.”
Complaint is made of the words ’‘or indirectly,” in the concluding paragraph. If these words are understood to mean that the jury wrere at liberty to consider remote acts of negligence as distinguished from primary, ánd if there was proof of such remote acts, we cheerfully concede that the direction was erroneous. But we have looked through the record in vain for any evidence tending to show an act of omission or commission on the part of the Kansas City Company which it is ppssible to
Upon the whole, the case appears to have been tried by the circuit court with commendable accuracy and fairness, and its judgment is therefore affirmed.