Gulf, C. & S. F. R. Co. v. Washington

• Decision Date: 01 February 1892
• Citation: 49 F. 347
• Parties: GULF, C. & S.F.R. CO. v. WASHINGTON.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F. 347

GULF, C. & S.F.R. CO. v. WASHINGTON.

United States Court of Appeals, Eighth Circuit.

February 1, 1892

E. D Kenna, J. W. Terry, and C. L. Jackson, for plaintiff in error.

S. S Merrill, for defendant in error.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District judges.

CALDWELL Circuit Judge.

This was an action commenced in the United States court for the third judicial division of the Indian Territory by the plaintiff against the Gulf, Colorado & Santa Fe Railway Company for the recovery of damages for stock alleged to have been injured and killed by the negligent operation of the defendant's locomotive engines and trains. The plaintiff recovered judgment for $375.72, and the defendant sued out this writ of error. The summons was in proper form, and the court rightly overruled the motion to quash it, because it did not state the nature and amount of the plaintiff's demand. Mansf. Dig. Sec. 4968; Id. Form No. 1, p 1251; Railway Co. v. James, 48 F. 148.

There was a demurrer to the complaint upon two grounds: First, that the court had no jurisdiction of the subject-matter of the suit; and, second, that it did not state sufficient facts to constitute a cause of action. The damages laid in the complaint are $468 for injuring and killing several head of stock at different times. The complaint states the value of each head of stock killed, and the value of each one is less than $100. The first act of congress regulating the civil jurisdiction of the court in the Indian r Territory provides that the court shall have jurisdiction in civil cases 'when the value of the thing in controversy or damages or money claimed shall amount to one hundred dollars or more ' Act March 1, 1889, (25 St.U.S.p. 783, c. 333, Sec. 6.) When the aggregate of the damages or money claimed amounts to $100, the court has jurisdiction under this section. The fact that each animal for which the plaintiff sues was worth less than $100 makes no difference, if the damages claimed for all of them amount to that sum. The last act of congress regulating the jurisdiction of the court-- Act May 2, 1890, (26 St.U.S.p. 94, c. 182, Sec. 29,)-- declares that the court shall have 'jurisdiction in all civil cases in the Indian Territory,' with exceptions which do not affect this question. Whether this act repeals by implication the limitation on the jurisdiction contained in the act of 1889 we do not decide.

The complaint alleges that the defendant, while operating its line of railway through the plaintiff's pasture, negligently killed the stock sued for, and that the stock was killed solely through the inexcusable negligence of the defendant. It is said this statement of the cause of action is fatally defective in substance, because it merely states that the cattle were killed by the defendant while operating its road through the plaintiff's pasture, and does not state how the defendant killed them,-- whether it was by running its engines and trains over or against them, or in some other manner,-- and that it does not state in what the alleged negligence of the defendant consisted. The complaint is inartificially drawn. But against the assault of a general demurrer it is good under the Code in force in that territory. Under that Code a complaint is good on demurrer if it contains the substantial elements of a cause of action, however indefinitely or) inartificially they may be stated. Indefiniteness of uncertainty of statements in a complaint which, when construed in the most liberal manner, states the substance of a cause of action, is not a ground of demurrer, but is a defect to be corrected by motion for a more specific statement. The complaint will be treated as alleging by implication every fact which can be implied from its averments by the most liberal intendment. Mansf. Dig. Sec. 5065; Fordyce v. Merrill, 49 Ark. 277, 5 S.W.Rep. 329; Green v. Mayor, 8 Abb.Pr. 27; Meyer v. Railway Co., 7 N.Y.St.Rep. 245. It is very well settled that a general allegation of negligence, without stating the particular acts which constituted the negligence, is good against a general demurrer. Harper v. Railroad Co., 36 F. 102; Railroad Co. v. Crenshaw, 65 Ala. 566; City of Anderson v. East, 117 Ind. 126, 19 N.E. 726; Scott v. Hogan, 72 Iowa, 614, 34 N.W. 444; McFadden v. Railway Co., 92 Mo. 343, 4 S.W.Rep. 689. Moreover, it is the settled doctrine of the supreme court of the United States that filing a plea to the merits after a demurrer is overruled is a waiver of the demurrer. Stanton v. Embry, 93 U.S. 548; Campbell v. Wilcox, 10 Wall. 421. And this is the rule under the Code of Arkansas, in force in the Indian Territory. Jones v. Terry, 43 Ark. 230.

The court refused the request of the defendant to have the jury drawn and impaneled in the mode required by sections 4013-4015 of Mansfield's Digest. This was error. Railway Co. v. James, 48 F. 148.

A witness familiar with the track of the defendant's road at the place where the cattle were killed was asked how far cattle on the track could be seen in each direction by the engineer or other person on the track from the point where they were killed. The objection to this question-- that it called for the opinion of the witness-- was rightly overruled. The question related to a fact about which any one acquainted with the track, and possessed of ordinary intelligence and eye-sight, might give his opinion or judgment. It is every-day practice in the courts for witnesses to be asked similar questions, such as the size of a room, the width of a street, the distance between two objects, and the distance a given object can be seen from a particular stand-point. In these and like cases it is competent for a witness acquainted with the places or localities to state his best judgment, based on his personal knowledge and observation, of the localities and places. These are matters of common knowledge, about which experts have no advantage over laymen; and to hold that a witness could not testify to the distance between objects, or the distance a given object could be seen from a particular stand-point familiar to him, unless he had actually measured the distance, would entail intolerable expense and delay in the administration of the law, and frequently result in a total failure of criminal as well as civil justice.

It was not error to refuse to instruct the jury to return a verdict for the defendant upon the ground that there was not sufficient evidence to support the plaintiff's action. There was abundant evidence to warrant the jury in finding a verdict for some of the stock killed. Besides, there was evidence tending to show that the defendant had agreed to fence its track through the plaintiff's pasture, and that the cattle strayed on the track and were killed by reason of the neglect of the defendant to fence its track according to its agreement. Nor was it error for the court to refuse to charge the jury to return a verdict for the defendant as to all stock 'the witnesses did not see killed. ' One who kills another in secret, when no eye sees the deadly potion administered or the fatal blow struck, may be convicted of murder, and hanged on circumstantial evidence; and no reason is perceived why the same character of evidence may not be sufficient to prove that a railroad company killed a cow or a mule; and that the killing was the result of the company's negligence. Some of the cattle sued for were found, very soon after they were killed, on or near the railroad track, and the injuries and marks of violence appearing upon their bodies were such as would be inflicted by coming in contact with a moving engine or train of cars. A jury might well find from these circumstances that the cattle were killed by the defendant's trains. Whether the killing occurred through the negligence of the railroad company is not so easily proved; but that fact, like any other, may be proved by circumstances. It is competent for the plaintiff in such cases to show that the track where the cattle were killed is straight, and free from any obstruction which would obscure the view of the engineer of a train going in either direction, and that by the exercise of ordinary care and diligence the engineer could have seen cattle on the track, not only in daylight, but, by the aid of the headlight of the locomotive, in the night-time also, in time to have avoided the killing. These and any other circumstances calculated to throw light on the issue may be considered by the jury. It is the province of the jury to say whether the circumstances in any given case are sufficient to warrant a finding that the cattle which no witness saw killed were killed through the negligence of the railroad company, when there is any evidence tending to show that fact. It does not appear, as shown elsewhere in the opinion, that all the testimony in this case that was heard by the jury is before us, and we can therefore form no opinion as to its sufficiency; and the presumption that the verdict was founded on sufficient evidence must prevail.

It was not error to refuse to instruct the jury that they must make a special finding as to each animal sued for. That was a matter...