Turnbull v. New Orleans & C.R. Co.

• Citation: 120 F. 783
• Decision Date: 17 February 1903
• Docket Number: 1,186.
• Parties: TURNBULL v. NEW ORLEANS & C.R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

120 F. 783

TURNBULL v. NEW ORLEANS & C.R. CO.

No. 1,186.

United States Court of Appeals, Fifth Circuit.

February 17, 1903

E Howard McCaleb, for plaintiff in error.

Henry P. Dart and Benj. W. Kernan, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The plaintiff in error has assigned many alleged errors in the action of the Circuit Court on the trial of this case. We will notice only one of them. It is stated in these words:

'The court erred in refusing to charge the jury, as requested by plaintiff, as follows: 'In an action like this for damages against a railroad company by the surviving parent for the injury, suffering, and loss of his son, run over and killed by a car of the defendant company, the defense of contributory negligence will not avail if, by reasonable care on the part of those in charge of the electric car the accident could have been avoided.' And the reasons assigned by the court for refusing said charge are contrary to the jurisprudence of the federal courts.'

The reasons just referred to are shown in the record to be as follows:

'The trial judge states that his reason for refusing said charge was that the same was too broad and misleading. The trial judge stated the true rule to the jury in the general charge, as follows: 'Therefore I say to you that in this case, if you find that the railroad company was at fault-- that the fault of the railroad company caused the injury-- that, however much the child was negligent, yet, if you find that the motoneer discovered the danger of the child in time to save the child, and did not do so, why the child could recover, notwithstanding the child's own contributory negligence. And I charge you further that if you find in this case that the conduct of the motoneer or the railroad company evinced such a reckless disregard of the life and safety of the child as to amount to a willful injury, then the child could recover, regardless of its own contributory negligence.' The instruction asked for is evidently based upon the case of Davies v. Mann, 10 Mees, & W. 546, which, as misunderstood by some, has been the cause of much trouble and confusion in cases for personal injuries. Beach on Contributory Negligence, 27, 28, 10, 11, 55, and 201. It is plain that the instruction asked for is a nullification of the doctrine of contributory negligence. The Supreme Court of Louisiana has so said. Cowden v. Railway Co., 106 La. 238, 30 So. 747. The doctrine of Davies v. Mann, as incorrectly states by some courts, has never been the law of the federal courts. On this point a number of cases could be cited. Mr. Thompson, in his recent excellent work on Negligence, shows that an instruction such as the one in hand leaves the jury without a guiding rule. All the authorities agree that a plaintiff cannot recover for personal injuries, if, by due care, he could have avoided the injury. Therefore an instruction to that effect should clearly be given to the jury. If thereupon the jury are told that the plaintiff can recover, notwithstanding his contributory negligence, if the defendant, by due care, could have avoided injuring him, it is clear that the instructions are conflicting, and the jury are left in hopeless confusion.. Of course, when no question of contributory negligence on the part of the plaintiff is involved, it is proper and right to charge that the defendant is liable, even if he did not discover the danger, provided he could have avoided the injury by exercising due care. In such a case there is negligence only on one side. But whenever the plaintiff contributes to his own injury by his negligence he cannot escape the effect of his negligence by showing that the defendant could, by the exercise of due care, avoid doing the injury. It is simply a case of two persons at fault. If the doctrine of contributory negligence is to be maintained, it is clear that the instruction asked for was properly refused.'

The son of the plaintiff, for whose injury, suffering, and loss damages are claimed, was an infant eight years of age. The language of the requested charge assumes that it was applicable to the evidence on the point to which the request was directed, and the language of the charge given by the judge, set out in his reasons for refusing the request, must be taken as conceding that the evidence in the case called for a proper charge on the point. It appears from this action of the circuit court, and from its action on numerous other requests for charges submitted by the plaintiff and refused or given only in part, or given as modified, that the mind of the very learned and careful trial judge had become settled in the conviction that the only cases in which a person who has been injured partly through his own negligence and the negligence of another can recover are those where, although the party injured was negligent, the party who did the injury saw the danger in time to have avoided it, and could have avoided it, and did not do it. In the recent excellent work on Negligence of Mr. Thompson, to which the trial judge refers, that distinguished text-writer says, in substance, that the old rule on the subject of...