Chamberlain v. Pierson

• Decision Date: 17 May 1898
• Docket Number: 226.
• Citation: 87 F. 420
• Parties: CHAMBERLAIN v. PIERSON.
• Court: U.S. Court of Appeals — Fourth Circuit

87 F. 420

CHAMBERLAIN v. PIERSON.

No. 226.

United States Court of Appeals, Fourth Circuit.

May 17, 1898

J. E Burke, for plaintiff in error.

W Perry Murphy, for defendant in error.

Before GOFF, Circuit Judge and JACKSON and PAUL, District Judges.

PAUL District Judge.

This was an action brought by the defendant in error against the plaintiff in error for damages resulting to the defendant in error while traveling as an express messenger on the railroad of which the plaintiff in error was receiver. The complainant filed in the court below alleges:

'That on the 28th day of November, 1891, the said plaintiff was in the employ of the Southern Express Company as messenger, and in such capacity was on board of the train of the South Carolina Railway Company, operated by the defendant as aforesaid, which left the city of Columbia about the hour of 7:50 o'clock on the said 28th of November, 1891, and was on said train when, through the carelessness, negligence, wrongful act, and default of said Chamberlain as receiver as aforesaid, he sustained serious injuries,' etc. 'That the said carelessness, negligence, wrongful act, and default of the said defendant lay in the fact that he so carelessly, negligently, and wrongfully conducted himself in the management of said railroad that, through the negligence, carelessness, and unskillfulness of himself and his servants, certain bolts were left out in the rails on the roadbed of the said company near the nineteen-mile post, near Lincolnville, S.C., by reason of which the train upon which plaintiff was riding did no said 28th day of November, 1891, without any fault on the part of the plaintiff, become derailed and wrecked at or near the said nineteen-mile post, in the county of Berkeley, in the state of South Carolina, inflicting the injuries upon the plaintiff above mentioned, from which injuries the said plaintiff has both suffered great bodily pain and been deprived of the means of future support, to his great loss and damage, to wit: * * *.'

The amended answer of the defendant to the complainant is as follows:

'First. For a first defense, that he denies each and every allegation in said complainant contained. Second. And for a second defense this defendant says that the derailment referred to in the third paragraphs of the complainant did not occur through the negligence of this defendant or his servants, but through the unforeseen and unexpected act of certain malicious and ill-disposed persons, whose names this defendant is informed and believes are Peter Bruno, alias Dick Bruno, and Grant Bennett, in removing bolts and fastenings of the rails at the place where said derailment occurred, without the knowledge of this defendant or any of his servants, and notwithstanding due care and diligence on the part of this defendant in the operation and maintenance and inspection of said railway. Third. And for a third defense this defendant says that said plaintiff was permitted to enter upon and into the car of this defendant only as the agent and servant of this defendant, and was given free transportation upon the car of this defendant only on condition that, in so transporting the said plaintiff, said plaintiff should be at his own risk of loss or damage through personal injury received during such transportation.'

The record shows that on the trial of the case the defendant, to sustain the second ground of defense states in his answer--

'Offered in evidence an exemplification of the record of the court of general sessions, Berkeley county, state of South Carolina, duly authenticated, in the case of State of South Carolina v. Peter Bruno and Grant Bennett, showing the indictment, final conviction, and sentence of said Peter Bruno and Grant Bennett on the charge of murder of said Mason Parker on 28th November, 1891, near Lapson's, in Berkeley county, S. C., by feloniously breaking, injuring, removing, and destroying certain joints, plates, and bolts from the railway track of the South Carolina Railway Company, by reason of which a certain railway train was derailed and thrown from said track, and whereby the said Mason Parker was crushed, and received a mortal wound, of which mortal wound the said Mason Parker died; and thereupon plaintiff objected to the introduction of the same on the ground that the evidence was irrelevant, and as being res inter alios acta, when his honor, the presiding judge, sustained the objection, and excluded the testimony. To all of which the defendant then and there, and before the jury had withdrawn from the bar, did except, and the court noted the exception.'

An exception to this ruling of the trial judge is the basis of the first assignment of error.

An agreement between the defendant railway company, of the first part, and the Southern Express Company, of the second part, was also introduced by the defendant. So much of that agreement as appears to be relevant to the issues is stated in the record as follows:

'That whereas, the party of the first part desires that all express business conducted on and over its lines, as they now or hereafter may exist, shall be under the sole control and direction of the party of the second part, for the mutual benefit and account of the parties hereto, the revenue from which shall be apportioned as hereinafter defined and agreed; and whereas, the aim and object of this agreement is to promote mutual interests, and secure for the parties hereto the best obtainable results therefrom, each will co-operate fully with the other for the attainment of that end: Now, therefore, it is hereby agreed as follows: * * * Eighth. The said party of the first part hereby recognizes as its employes all officers, agents, and servants of the party of the second part, while engaged in the business contemplated by the agreement, and will accord free transportation for them at their own risk. Ninth. Employes of the party of the second part shall be subject to the rules of the party of the first part, made for the government of its employes while on the trains; but said rules shall not conflict with the proper duties of said employes, or unnecessarily interfere with them in the discharge of their duties. * * * Fourteenth. No responsibility shall attach to the party of the first part for any goods, money, or other articles that may be transported on or over its lines, for or in the custody of the party of the second part, except for losses of or damage to freights which may result from the neglect of the party of the first part, its agents or servants; provided, that no such responsibility shall attach to the party of the first part for freight or other matter on which the party of the first part receives no compensation.'

At the conclusion of the evidence the court instructed the jury as follows:

'It is not necessary to decide whether the plaintiff, as messenger of the express company, had all the rights of a passenger on this train, or whether he was bound by the terms of the contract between the two companies, although he did not know of the contract, or whether he stood in the place of an employe of the railroad company. I charge you that if he was injured in this train by reason, perchance, of the negligence of the boss track minder and his gang, the railroad company is responsible to him, whether he was a passenger or bound by the contract between the two companies, or was an employe of the railroad company. The boss track minder and his gang were not fellow servants of the plaintiff, if we treat him as an employe of the railroad company; and their negligence was not one of the risks he assumed, if he assumed any risks.'

To this instruction the defendant excepted, and this is made the second and third grounds of assignments of error.

The fourth assignment of error is that the court erred in--

'Instructing the jury that in this case there was no burden of proof on either side, but the jury should come to their conclusion from all the facts and circumstances of the case. That the court erred in said instruction, inasmuch as, notwithstanding the granting of the first request to charge, this instruction impaired the force and meaning thereof, and was calculated to mislead the jury.' The instruction on which this assignment of error is based is shown by the record as follows:

'His honor, the presiding judge, further instructed the jury that in this case there was no burden of proof on either side, but that the jury should come to their conclusion from all the facts and circumstances in the case. To which instructions the defendant there and then, before the jury had withdrawn from the bar, excepted, and the court noted the exception.'

In settling this bill of exceptions, the judge states that he has no doubt some such expression was used; that what he meant was that, both parties having offered proof as to the disputed facts, the question was as to the preponderance of evidence,-- the burden having been accepted, and the evidence being intended to remove it. As he had not refused the first request to charge by defendant, he did not feel that he was misleading the jury. This first request was as follows:

'(1) That the foundation of the action is negligence, and the plaintiff, Pierson, cannot recover from the defendant unless plaintiff proves, by the preponderance of the evidence, that the defendant has been guilty of negligence; that is to say, that, under the circumstances proved in this case, he has omitted to do what a prudently conducted railroad company would have

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