93 U.S. 291 (1876), Indianapolis & St. L.r. Co. v. Horst

Citation:93 U.S. 291, 23 L.Ed. 898
Party Name:INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY v. HORST.
Case Date:December 04, 1876
Court:United States Supreme Court
 
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93 U.S. 291 (1876)

23 L.Ed. 898

INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY

v.

HORST.

United States Supreme Court.

December 04, 1876

OPINION

ERROR to the Circuit Court of the United States for the District of Indiana.

This was an action by the defendant in error against the Indianapolis and St. Louis Railroad Company for injuries received while travelling on a cattle-train, and resulted in a verdict against the company for $8,000; whereupon it brought the case here. The facts are stated, and the assignment of errors referred to, in the opinion of the court.

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COUNSEL

Argued by Mr. W. A. Brown and Mr. John T. Dye for the plaintiff in error.

1. It was error for the court to instruct the jury that a person taking a cattle-train is entitled to the highest possible degree of care and diligence, regardless of the kind of train he takes. Railroad Co. v. Lockwood, 17 Wall. 357; Unger v. Forty-second St., &c. R. R. Co., 51 N.Y. 502; Hegeman v.Western R. R. Corporation, 13 id. 9; Lebanon v. East Boston Ferry Co., 11 Allen, 515; Ford v. London & South-western Railway Co., 2 Fost. & Find. 830; Warren v. Fitchburg R. R. Co., 8 Allen, 230; Simmons v. New Bedford, Vineyard, & Nantucket Company, 97 Mass. 368; Galena & Chicago Union Railway Co. v. Fay, 26 Ill. 568; Fuller v. Talbott, 23 id. 357; Pitt., Cin. & St. L. R. R. Co. v. Thompson, 56 id. 168; Dunn v. Grand Trunk Railway Co., 58 Me. 187; Chicago, B. & Q. R. R. Co v. Hazzard, 26 Ill. 376.

2. The court erred in refusing to instruct the jury that their investigation as to the negligence of defendant should be confined to the charges alleged in the declaration.

The defendant had a right to a trial, according to law, of the issues joined. The question of its liability for damages should not have been left to depend upon the general conclusion of a jury, that it had not exercised the highest possible degree of care in his transportation, unrestrained by the pleadings.

3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to show the 'wrongfulness of their (defendants') conduct' at the time of the accident. Gahagan, Adm'r, v.Boston & Lowell R. R. Co., 1 Allen, 189.

4. The evidence did not show any negligence of the defendant in the particulars mentioned in the complaint.

On the contrary, plaintiff's evidence showed that the accident resulted from his own negligence. The defendant was therefore entitled to a verdict. Todd v. Old Colony & Fall River R. R. Co., 3 Allen, 21; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 231; Bridges v. North London Railway Co., 6 Law Rep. Q. B. 384; Smer v. G. W. Railway Co., 4 Law Rep. Ex. 117; Adams v. L. & Y. Railway Co., 4 Law Rep. C. P. 742; Penn. R. R. Co. v. Aspell, 23 Penn. St. 149.

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5. Although plaintiff's evidence showed that the accident resulted from plaintiff's negligence, the court charged that 'the burden of proving contributory negligence rests on defendant; and it will not avail the defendant, unless it has been established by a preponderance of the evidence.' This was error. Chicago, B. & Q. R. R. Co. v. Hazzard, supra; Butterfield v. Forester, 11 East, 60; Button v. Hudson River R. R. Co., 18 N.Y. 253; Mayo v. Boston & Maine R. R. Co., 104 Mass. 140; Johnson v. Hudson River R. R., 20 N.Y. 60.

6. It was error for the court to refuse the motion of defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict. Osborn v. United States Bank, 8 Wheat. 366; Butler v. Young, Chicago Legal News, vol. v. p. 146;Republican Ins. Co. v. Williams, id. p. 97; Sage v. Brown, 24 Ind. 469; Barnes v. Williams, 11 Wheat. 415; Prentice v. Zane's Adm'r, 8 How. 487; Livingston Mar. Ins. Co., 6 Cranch, 280; Peterson v. United States, 2 Wash. C. C. 36; Butler v. Hooper, 1 id. 499; Bellows v. Directors, &c. of Hallowell and Augusta Bank, 2 Mason, 31.

Mr. A. G. Porter for the defendant in error.

The passenger was entitled to the highest degree of care and diligence. Philadelphia & Reading R. R. Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 How. 469.

The burden of proving contributory negligence rested on the defendant. Railroad Company v. Gladman, 15 Wall. 401; Whart. on Neg., sect. 423.

The refusal of the court to submit the interrogatories of the defendant below to the jury was correct. Nudd et al. v. Burrows, Assignee, 91 U.S. 426.

MR. JUSTICE SWAYNE delivered the opinion of the court.

The defendant in error was injured while travelling on the road of the plaintiff in error, and brought this suit to recover damages. To set in their proper light the propositions of law relied upon by the plaintiff in error for the reversal of the judgment, a brief statement of the facts of the case is necessary.

The plaintiff was a farmer, residing in Pennsylvania. He had been engaged in the cattle trade since 1862, and had

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shipped annually, over the Western railroads to the Eastern markets, about a thousand head of cattle. The cause of action occurred on the 4th of August, 1870. He had shipped on the defendant's road, the day before, five car-loads of cattle, to be conveyed to Pittsburg, and was on the train at the time of the injury. He arrived at Mattoon, in Illinois, about midnight. He and two other drovers were asleep in a caboose attached to the hinder end of the train. They were aroused by the conductor, who commanded them to get out of the caboose, and to get on top of the train. He said he should detach the caboose; and that, at some distance further up the road, he would attach another. The train was then at rest. The plaintiff went forward with his prod to look after his cattle, and returned on the roof of the cars to where his fellow-drovers were standing awaiting the movement of the train. He stood there, with his carpet-sack in one hand and the prod in the other. He used the latter to support himself. The train ran a half or three quarters of a mile to pass on to a switch, and take on the other caboose. A brakeman on the hindmost car had a lantern in his hand. The light so dazzled or blinded the plaintiff, that he thought he was on the same car with the brakeman, though he was in fact near the end of the car next before it. The train, in backing on the switch, stopped before it reached the caboose which was to be attached to it. It was thereupon suddenly drawn forward, 'to take up the slack,' and then suddenly backed, producing a quick and powerful concussion, which precipitated the plaintiff between the car on which he was standing and the hindmost car. 'The shock of the concussion,' one of the witnesses says, 'was about as hard a shock as I ever felt, not to knock a train off the track. It seemed as if it was tearing every thing to pieces.' The plaintiff fell on the coupling, and received the injury complained of. No warning was given that these sudden and violent movements were likely to occur, and none was given that any precautions were necessary. No light was furnished to the plaintiff and his fellow-passengers, and no directions were given for their guidance and safety. All the evidence in the case is set out at length in the bill of exceptions. It was given by the plaintiff. The defendant gave none. The entire charge of the court, and

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the instructions asked for on both sides, are also fully set out. The defendant asked for twenty instructions. The court refused to give any of them. The plaintiff asked for six, which were all given. To both the refusal and the giving the defendant excepted. The plaintiff's prayers were excepted to, severally.

When instructions are asked in the aggregate, as were those of the defendant, and there is any thing exceptionable in either of them, the whole may be properly rejected by the court. Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 id. 338; Johnson v. Jones, 1 Black, 209.

There were several things of this character in those in question. It is sufficient to refer to one of them. The court was asked to charge that the defendant was bound to exercise only ordinary care and diligence. This point will be considered, presently, in another connection.

It is the settled law in this court, that, if the charge given by the court below covers the entire case, and submits it properly to the jury, such court may refuse to instruct further. It may use its own language, and present the case in its own way. If the results mentioned are reached, the mode and manner are immaterial. The court has then done all that it is bound to do, and may thus leave the case to the consideration of the jury. Neither party has the right to ask any thing more. Labor v. Cooper, 7 Wall. 565. We think the charge in this case fulfils the requisites we have defined. The errors of omission and commission alleged are not numerous. We might, perhaps, properly content ourselves in this connection with vindicating the charge as given. We shall, however, consider all the several assignments of error which we deem material, both with respect to the charge and otherwise, as we find them set forth in the printed brief of the counsel for the company. The same points were fully and ably argued by the same gentlemen orally at the bar.

'1. The court erred in instructing the jury that a person taking a cattle-train is entitled to demand the highest possible degree of care and diligence, regardless of the kind of train he takes.'

Such is the rule of care and diligence laid down by this court in three adjudications where the action was against a carrier of persons. The first was the Philadelphia & Reading R. R. Co. v. Derby, 14 How. 486

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. The plaintiff was travelling gratuitously on a passenger train. It was said: 'Where carriers undertake to convey passengers by the powerful and...

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