Baltimore & O.R. Co. v. Camp

• Decision Date: 06 July 1897
• Docket Number: 449.
• Parties: BALTIMORE & O. R. CO. v. CAMP.
• Court: U.S. Court of Appeals — Sixth Circuit

81 F. 807

BALTIMORE & O. R. CO. v. CAMP.

No. 449.

United States Court of Appeals, Sixth Circuit.

July 6, 1897

J. H Collins, for plaintiff.

S. M Hunter and R. A. Harrison, for defendant.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

TAFT Circuit Judge.

This is the second time this case has been before this court. It is reported in 31 U.S.App. 213, 13 C.C.A. 233, and 65 F. 952. The plaintiff was a locomotive engineer of the Baltimore &amp Ohio Railroad Company, and was seriously injured in a collision between two of the freight trains of the company at a point about six miles east of Black Hand, a station of the Central Ohio Division.

In the first trial he recovered a verdict and judgment against the company for $10,000. Because of error in the instructions of the court below, this court reversed the judgment, and directed a new trial. The present proceeding is brought to review a judgment for $12,000 entered upon the verdict rendered at the second trial. We regret exceedingly that we are obliged to reverse the judgement again. We do so for two reasons. The court permitted evidence to go to the jury that the plaintiff had a wife and one child. The evidence was objected to, the objection overruled, and an exception taken. In Pennsylvania Co. v. Roy, 102 U.S. 451, in a suit for personal injuries against a railroad company, the plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children. The court said upon this point:

'This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff's family it is impossible to determine with absolute certainty, but the reasonable presumption is that it had some influence upon the verdict.'

In the face of this controlling authority, we are unable to escape the conclusion that the action of the court below in permitting the plaintiff to show that he had a wife and one minor child was erroneous, and prejudicial to the defendant.

There was a second error in the rulings of the trial court. One of the main charges of negligence against the company was in the employment of the telegraph operator whose gross negligence caused the collision and...