Furrer v. Ferris

• Decision Date: 02 May 1892
• Citation: Furrer v. Ferris, 145 U.S. 132, 12 S.Ct. 821, 36 L.Ed. 649 (1892)
• Parties: FURRER v. FERRIS
• Court: U.S. Supreme Court

145 U.S. 132

12 S.Ct. 821

36 L.Ed. 649

FURRER v. FERRIS.

May 2, 1892.

O. S. Brumback, for appellant.

[Argument of Counsel from pages 133-134 intentionally omitted] A. W. Scott, for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

As this intervening petition was filed nearly a year after the passage of the act of March 3, 1887, (24 St. p. 554,) authorizing suits against receivers without leave of the court appointing them, it is evident that the petitioner preferred to not exercise his right to a common-law action and a trial by a jury, but rather to come into a court of equity and have his rights there determined according to the rules and practice of such courts. In view of such election, we fail to appreciate his counsel's complaint of the law in not driving him to a forum which he so carefully avoided.

The gist of this controversy was the alleged negligence of the receiver in failing to maintain a reasonably safe crossing. This presented mainly a question of fact. Upon the testimony, both the master and the circuit court found that there was no negligence, and, while such determination is not conclusive, it is very persuasive in this court. In Crawford v. Neal, 144 U. S.—12 Sup. Ct. Rep. 759, it was said:

'The cause was referred to a master to take testimony therein, 'and to report to this court his findings of fact and his conclusions of law thereon.' This he did, and the court, after a review of the evidence, concurred in his finding and conclusions. Clearly, then, they are to be taken as presumptively correct; and unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. Rep. 894; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. Rep. 355; Evans v. Bank, 141 U. S. 107, 11 Sup. Ct. Rep. 885.'

That rule compels an affirmance of the decree in this case. It appears that the railroad track was raised above the level of the highway; but the rise was slight, and the slope gradual. According to the testimony of the surveyor who measured the crossing, (and the other witnesses who simply gave estimates substantially corroborated him,) the rise on the one side was 1.4 feet in 30 feet, and on the other 1.3 in 15, and 1.9 in 30 feet,—a rise but a trifle greater than that from the gutter to the...