Shandrew v. Chicago, St. P., M. & O. Ry. Co.

• Citation: 142 F. 320
• Decision Date: 13 November 1905
• Docket Number: 2,171.
• Parties: SHANDREW v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

142 F. 320

SHANDREW v. CHICAGO, ST. P., M. & O. RY. CO.

No. 2,171.

United States Court of Appeals, Eighth Circuit.

November 13, 1905

On a trial of an action against a railroad company to recover for the death of a brakeman, alleged to have been caused by the bursting of a defective air brake hose on a freight train, an instruction was correct which stated that defendant was not liable, unless it failed to exercise ordinary care to provide a proper and fit hose and to keep it in good condition, and that the fact that the hose did burst by reason of its defective condition was not of itself sufficient evidence of defendant's negligence.

This suit was instituted by the plaintiff in error, hereinafter called plaintiff, against the defendant railroad company to recover damages for the negligent operation of its railway resulting in the death of plaintiff's intestate. The specification of negligence found in the complaint is that defendant's servants, agents, and employes in charge of one of its freight trains suddenly and violently stopped the train while plaintiff's intestate, engaged in the discharge of his duty, was on the top of a car, and thereby precipitated him to the ground, and so injured him that he subsequently died. Descending to particulars, plaintiff alleges that the air brake hose with which the train was equipped was old, insufficient, and rotten to such a degree that it burst, and thereby suddenly set the air brakes, which caused the sudden and violent stopping of the train, and that although the defendant knew, or by reasonable observation and inspection might have known, the insufficient character of the air hose it permitted the same to become old, weak and rotten, and insufficient for the purpose for which it was intended. The defense consisted of a denial of the alleged negligence and a plea of contributory negligence. The trial was to a jury, and resulted in a verdict and judgment in favor of the defendant. Plaintiff brings the case here by writ of error.

Christopher D. O'Brien (Richard D. O'Brien, on the brief), for plaintiff in error.

Thomas B. Wilson (James B. Sheean, on the brief), for defendant in error.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge, after stating the case as above, .

There are three assignments of error predicated on admission of evidence over plaintiff's objections. Plaintiff's counsel states his objections to the questions as follows (1) 'I object to this as immaterial.' (2) 'I object to this as immaterial, incompetent, and irrelevant.' (3) 'I object to that as immaterial incompetent, and irrelevant. ' These objections are generally insufficient upon which to predicate reviewable error. They fail to direct attention of the trial court to the objectionable feature complained of. Such general objections are frequently made at the inception of a trial, before the court is entirely familiar with the issues of a case, and when, of all times, it has a right to expect aid and assistance from counsel. To object to a question because it is 'immaterial' or 'irrelevant,' without specifying why or in what particular, imposes the burdensome duty upon the court to immediately and carefully scrutinize the pleadings, with a view of ascertaining therefrom whether under any conceivable theory the proposed evidence would be material or relevant; a duty which, from the nature of things, the court can, at the outset of a trial, with difficulty perform. Counsel, on the contrary, from their familiarity with the case, not only understand the issues, but doubtless understand the immediate or remote bearing of any kind of evidence, and can readily advise the court why or in what respect a given question is immaterial or irrelevant. These observations apply with equal or greater force to an objection on the ground of incompetency. A witness may be incompetent as such, or the oral evidence of a fact, when some writing exists, may be incompetent evidence. Which of these, or many others that might be specified, is it? This can readily be answered by counsel. If he makes an objection, either on the ground of immateriality or incompetency, he knows his reasons for so doing, and must, unless it appears from the connection that the question is obviously or clearly inadmissible, state them, if he desires to claim error by reason of the court's action. The reasons for this rule may also be put on broader grounds. Counsel are officers of the court in quite the same sense as the judge is. Both are engaged in the serious work of administering justice. They should, therefore, work together to that end. Candor and freedom from reserve or disguise should equally characterize their conduct.

This court at an early day had occasion to characterize the words 'irrelevant, immaterial, and incompetent,' commonly employed in connection with an objection to a question, as a 'meaningless formula.' It expressly ruled that a failure to state why a question was 'incompetent' invalidated any exception saved to its admission. Minchen v. Hart, 72 F. 294, 18 C.C.A. 570. And at a later day this court held, citing many authorities, that an objection to a question that it was 'immaterial,' without more, was tantamount to no objection at all. Eli Mining & Land Co. v. Carleton, 108 F. 24, 47 C.C.A. 166. At this term, in the case of Davidson Steamship Co. v. United States of America, 142 F. 315, this court took occasion to say as follows:

'It has been held by this court many times that a trial court is justified in overruling an objection to a question or to evidence sought to be elicited thereby, when no ground is specified or when the ground mentioned is so general in form as to be insufficient to direct attention to the particular defect or objectionable feature ruled on.'

The cases of Sparf & Hansen v. United States, 156 U.S. 51, 15 Sup.Ct. 273, 39 L.Ed. 343, Burlington Ins. Co. v. Miller, 60 F. 254, 8 C.C.A. 612, Missouri Pac. Ry. Co. v. Hall, 66 F. 868, 14 C.C.A. 153, and Guarantee Co. v. Phenix Ins. Co. 59 C.C.A. 376, 124 F. 170, modify the general rule fully as far as the interests of justice demand. They appropriately recognize this rule, but hold that, when the reasons for ruling a given question immaterial or incompetent are obviously and clearly discernible, the general objection will be sufficient to require a ruling, and may be the basis of reviewable error. For the reason that the immateriality or incompetency of the questions complained of by plaintiff in error are not obviously or clearly discernible, we feel constrained to decline to consider the assignments of error predicated on general objections like those stated.

An exception was duly taken and preserved to the following portion of the court's charge:

'The mere fact that the hose did burst by reason of a defective condition is not of itself sufficient evidence that the defendant was negligent.'

This portion of the charge is found in connection with and as a concluding part of the following:

'The defendant was not an insurer of the sufficiency or fitness of the air brake hose in question. It was only bound to exercise ordinary care to provide a sufficient and fit hose, and if it did use ordinary care it is not liable.'

This case was apparently tried below on an issue that one of the acts of negligence charged against the defendant was that it failed to discharge its duty to properly inspect the hose in question, and that by reason of this failure the hose burst, proximately causing the death of plaintiff's intestate. It is doubtful if the pleadings warranted the trial of any such issue. But as the trial proceeded as if such an issue was joined, and as that is the theory of the argument before us, we shall, for the purpose of our decision, treat the case as if tried on that issue with others as stated in the complaint. The particular portion of the charge to which the exception now under consideration was taken is practically a statement that the fact that the accident happened is not sufficient proof of negligence. It is settled law that, as between a master and his servant, the maxim 'res ipsa loquitur' has no application. Union Pacific R. Co. v. Daniels, 152 U.S. 684, 14 Sup.Ct. 756, 38 L.Ed. 597; Texas & Pacific Railway Co. v. Barrett, 166 U.S. 617; 17 Sup.Ct. 707, 41 L.Ed. 1136; Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Peirce v. Kile, 80 F. 865, 26 C.C.A. 201. In the Barrett Case, supra, the Supreme Court had before it a case on the pleadings, facts, and procedure much like that now before us. The action in that case was to recover for personal injuries alleged to have been sustained by Barrett by reason of a weak and unsafe condition of stay bolts in a boiler, which resulted in an explosion. In that case the trial court gave the jury the following instruction:

'The master is not the insurer of the safety of its engines, but is required to exercise only ordinary care to keep such engines in good repair, and if he has used such ordinary care he is not liable for any injury resulting to the servant from a defect therein not discoverable by such ordinary care. The mere fact that an injury is received by a servant in consequence of an explosion will not entitle him to a recovery; but he must, besides the fact of the explosion, show that it resulted from the failure of the master to exercise ordinary care either in selecting such engine or in keeping it in reasonably safe repair.'

This instruction, with others not necessary now to mention, was approved by the Supreme Court, saying:

'We think that these instructions laid down the applicable rules with sufficient accuracy in substantial conformity with the views of this court as expressed in Hough v. Railway Co., 100

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