107 F. 356 | 5th Cir. | 1901
after stating the facts in the foregoing language, delivered the opinion of the court.
The first assignment of e'rror, complaining of the refusal of the court below to instruct the jury at the close of the plaintiff’s evidence to find for the defendant, is not well taken, because at the time of requesting such instruction the defendant had not rested its case, but afterwards went on and introduced evidence in its own behalf. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266; Insurance Co. v. Crandal, 120 U. S. 527, 530, 7 Sup. Ct. 685, 30 L. Ed. 740.
The second assignment of error alleges that the court erred in refusing to instruct the jury to find for the defendant after all the testimony was offered, on the ground, first, that plaintiff’s injuries resulted through no negligence of defendant in any respect whatsoever, but plaintiff’s injuries resulted through the negligence of Rag-land, the engineer of the south-bound train hauled by engine Ho. 229 in running beyond Agua Hueva, the meeting point, and in failing to have a headlight burning upon his engine. Under the evidence as recited in the transcript the collision between the north and south bound trains of the defendant company on the main track was due to the negligence of the company and of its agents in charge and control of the south-bound train, and we do not think that under the evidence the sum total of the negligence can be apportioned to Ragland, the engineer in charge of the south-bound train. It is admitted the night was dark, the engine was without headlight or signal lamps, the wind was blowing sand and snow across the track, while the place at which the trains were to meet was only a'blind siding, — a "place without a telegraph station or a signal
The second reason assigned to show error in the ruling of the court is:
“That the court could not presume the existence of the Civil Code in Mexico; that it could not presume that the principle of assumed risk of negligence of fellow servants'was not in vogue in Mexico, and for the reason that plaintiff did not plead or attempt to prove that the civil law was in effect in Mexico, concerning the matter of liability and rights of railroad companies, but pleaded and set up various statutes of Mexico concerning the rights of action against railroads, and liabilities of railways and corporations for damages in suits of this kind, claiming that defendant was liable by reason of the statutory law of Mexico, not the civil law; that none of the laws set up and pleaded by plaintiff showed that the defendant was liable for negligence of plaintiff's fellow servant Ragland.”
Tn Railway Co. v. Marshall, 34 C. C. A. 138, 91 Fed. 938, in which the law of Mexico with regard to employers’ liability was in question, this court held:
“In the absence of proof, it is to be presumed that in the matter of liability of an employer for his negligence, resulting in injuries to an employe, the law of Mexico is the same as the law of Texas, in both of which the civil law originally prevailed. See Phil. Ev. (Cowen & Hill’s and Edwards’ notes) p. 429 et seq., and adjudged cases there cited; 1 Rice, Ev. p. 65; Whart. Ev. § 1292. Indeed, there is good authority for holding that, as the state of Texas recently constituted a part of the republic of Mexico, the courts in the state of Texas, in proper cases, will take judicial notice of the laws common to both prior to the separation, Malpica v. McKown, 1 La. 248; Berluchaux v. Berluchaux, 7 La. 539. further than this,» it is to be noticed that under the laws of Mexico, as proved herein, it is clear that a civil action may be brought to recover damages resulting- from negligence.”
And we think the same rule should be applied in this case, so far as the law of Mexico was not proved on Hie trial. The record shows, however, that the defendant pleaded and proved the following as being laws in force in Mexico, to wit:
“Art. 53. The conductor of a train en route is the person in command of all the train crew, including the engineer and iireman.”
“Art. 184. Railway companies are liable for all faults or accidents which occur through the tardiness, negligence, imprudence or want of capacity of their employes.”
And tbe plaintiff proved rules of the Mexican Central Kailway Company as follows:
“Rule No. 34. Each train running after sunset, or when obscured by fog or other cause, must display the headlight in front, and two or more red lights in the rear.”
“Rule No. 84. All north-bound trains have the absolute right of track over all soutli-hound trains.”
It follows that the court did not err in refusing to instruct the jury to find a verdict for the defendant, because, whether the acci
The third assignment of error complains of the action of the court in instructing the jury verbally instead of in writing, for the reason that under the laws of the state of Texas the courts are required to give their instructions in writing, and for the further reason that the defendant could not reserve its exceptions to the charge of the court without interrupting the court at the time it was delivering its charge, and the jury .could not so well understand the law under verbal instructions as they might have done under written instructions. Assuming that this assignment of error is serious, we dismiss it with the remark that the laws of Texas with regard to instructing juries in the state courts do not prevail in the courts of the United States.
■ The fourth assignment of error complains that the court instructed the jury to find against the defendant and in favor of the plaintiff for such damages as the plaintiff sustained. The reason assigned is that it was the province of the jury to pass upon the question as to whether or not, under the proof, any one was guilty of negligence entitling plaintiff to recover; and, further, that it was the province of the jury to pass upon the credibility of the witnesses and the weight of the evidence. The uncontradicted facts in the case established the negligence of the company and its agents, and also, in our opinion, the right of the plaintiff to recover damages for such injuries as he suffered.
The fifth assignment of error complains that the court erred in refusing to charge the jury upon the issues presented by the defendant’s plea to the jurisdiction, for the reason that it appeared from the testimony in the case that the plaintiff was not seriously or permanently injured, and that he sought to exaggerate his claim for damages in order to bring his case within the jurisdiction of the court. The question whether the demand of the plaintiff for damages was colorable and exaggerated for the purpose of conferring jurisdiction on the circuit court was one for the court to decide. Section 5, Act March 3, 1875 (18 Stat. 472; 25 Stat. 433, § 6). If proper to submit it at all to a jury (on which we express no opinion), the submission should be as to facts, and separate from the merits. The submission of the question as asked by plaintiff in error, if granted, and the finding had been favorable, would have resulted in res adjudicada as to defendant in error’s right to recover for such damages as he actually suffered. The case was submitted solely as to the damages suffered by the plaintiff below, and the verdict was for $1,085. The record shows no renewal of the application to dismiss the case for fraud on the jurisdiction of the court.
The sixth and seventh assignments of error complain of the admission of evidence over the objections of the defendant below tending to show that the plaintiff suffered from hemorrhages and vomiting within a short time — two or three weeks — after the injuries complained of. The evidence was objected to because there are no
This disposes of all the assignments of error, and with such result that the judgment of the circuit court must be affirmed; and it is so ordered.
