Hastings Lumber Co. v. Garland

• Decision Date: 29 April 1902
• Docket Number: 395.
• Citation: 115 F. 15
• Parties: HASTINGS LUMBER CO. v. GARLAND.
• Court: U.S. Court of Appeals — First Circuit

115 F. 15

HASTINGS LUMBER CO. v. GARLAND.

No. 395.

United States Court of Appeals, First Circuit.

April 29, 1902

Robert N. Chamberlin (George F. Rich, on the brief), for the plaintiff in error.

Crawford D. Hening (Irving W. Drew, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

This is a statutory suit, brought in the district of New Hampshire in behalf of the administrator of the estate of Harry Belmont, who was a locomotive engineer in the employment of the Hastings Lumber Company, the defendant below. It was tried to a jury, and the verdict was for the plaintiff below and the defendant below sued out this writ of error. It will be convenient in this opinion to describe the plaintiff in error as the defendant, and the defendant in error as the plaintiff. The declaration alleges substantially that it was the duty of the defendant to furnish the plaintiff's intestate a safe locomotive, that the defendant negligently omitted so to do, and that the locomotive furnished was dangerous, unsafe, and unfit for use, so that the boiler exploded and caused his death. The suit was based on sections 8-13, c. 191, Pub. St. N.H., as amended by section 5, c. 67, Laws 1893. We need repeat only sections 8 and 12 of chapter 191, as follows:

'Sec 8. Actions of tort for physical injuries to the person, although inflicted by a person while committing a felony, and the causes of such actions, shall survive to the extent, and subject to the limitations, set forth in the five following sections, and not otherwise.'

'Sec. 12. If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by him in consequence of the injury, the reasonable expenses occasioned to his estate by the injury, the probable duration of his life but for the injury, and his capacity to earn money may be considered as elements of damage, in connection with other elements allowed by law.'

The first question before us arises with reference to the refusal of the court to admit certain evidence, the record as to which is substantially as follows: It appeared that the railroad, on which the locomotive which exploded was operated, was used for lumbering purposes, and was purchased, with the locomotive, from another corporation, by which the locomotive had been sent to Portland for repairs. The repairs were made under the inspection of one Sawyer, who testified as a witness for the defendant. Sawyer had been a locomotive engineer for the corporation from which the property was purchased, and continued as such in the service of the defendant. There was a suggestion at bar that he had some duties in the way of superintendence, but the record fails to show any facts to that effect. It appears that the workmen who made the repairs at Portland reported in reference thereto to Sawyer. In his examination, the defendant, after proving the facts stated, put to Sawyer this question: 'What was the report they (that is, the repairers) made with respect to the condition of the stay bolts? ' Presumably the giving away of the stay bolts resulted in the explosion which caused Belmont's death. The court inquired whether the defendant proposed to show that this report was made known to it, to which it replied in the negative. Thereupon, the court observed that what the repairers reported to Sawyer would be evidence if he repeated it to the defendant, but that it was not competent unless it was thus connected. Thereupon the evidence was excluded. The record does not show that the defendant communicated to the court any special grounds for the admission of the evidence, or any reason why it was admissible unless the information derived from the repair men was made known to the defendant. We cannot assume that it was offered on any proposition, except the allegation in the plaintiff's declaration that the defendant 'negligently' failed to furnish a proper locomotive; that is to say, as bearing on the question of reasonable care on the defendant's part. Inasmuch as it does not appear that the witness stood in the place of the corporation with reference to the care of its locomotives, we are unable to perceive how any information given him, but not so communicated, can bear on that question. We are compelled to hold, therefore, that this ruling was correct.

The remaining question relates to that portion of the statute which, in a suit of this character, permits the consideration, as an element of damages, of physical pain suffered by the deceased. On this point the defendant submitted the following request for an instruction to the jury:

'In the determination of this question the jury should entirely exclude any damages by reason of any supposed physical pain or suffering, and also any expenses to their estates for funeral or burial, as there is no evidence which would justify any allowance upon these grounds.'

Inasmuch as this request combines two separate matters, it would under some circumstances, be ineffectual; but, as it is plain that the particular topic which we are asked to consider was brought to the attention of the court below, so that it properly understood it and understandingly ruled on it, the question fairly comes before us. With reference to that part of the request which concerns the intestate's supposed physical pain, the court submitted the issue to the jury, and expressly authorized them to consider whether the intestate suffered either physical or mental pain, and directed them that, if he did, they should estimate the same according to their best judgment, so far as they could place a money value upon it, or as nearly as they could compensate therefor. The court added, however, that, if the injury was satisfied that death was instantaneous, or that, if the intestate hardly knew, if he knew at all, what killed him, they would 'probably lay that feature of the case away, without giving it very serious consideration. ' It is to be noted, however, that, even in that event, the court did not direct the jury to wholly disregard this element. It is claimed by the defendants, as stated in the request, that there were no facts to support any allowance for physical suffering. Of course, on the ordinary rules of law, if there were none, the court was not justified in submitting the issue to the jury, and should have ruled that they...