NEW ORLEANS &- N. E. R.aO. V. THOMAS.
379
App: 369,1 718,'inconflict.wi{hthe views herein expressed. ' Intllat' case..abrakeman wasJnjurM while coupling a car, and on the tl'ialaninstruction "vas asked of the court to direct a vei'dict for defendant on the gronnd of the contributory negligence of the plaintiff, in failing to use a stick in making such coupling, as required by the rule of the company, which instruction was refused, 'and the matter of negligence submitted to the jury. There was testimony tending to show that the rule was universally disregarded, and that the superintendent of the road:was fully aware ()f its constant violation; and it was held that l1nder>thedrcumstances the jury were at liberty to consider whether the rule was not, in effect, abrogated. The court thus disposed of the question (page 882, 4 U. S. App., page 625, .1 O. C. A., and page 718, 50 Fed.): ,'ITo llold that this defendant company could make this rule on paper, call it to plaintifr's attention, and give him written notice that he must obey it, and be bound by it, one day, and know and acquiesce, without complaint or objection, In the complete disregard of it by the plalntlfr, and all its other employes ,associated wlthblm on every day he was in its service, and then escape liability to him for an injUl,'y .caused by its own breach of duty towards the plaintiff, because he this rule, would. be neither good morals nor good law. Actions are often more efrect1ve than words, and it will not 40 to say that neither the plaintifr nor the jury wusauthorlzed to believe, from the long-continued acquiescence of the defeJ;ldant in the disregard of this ruIe, that it had been abandoned, and that it was not in force. The ev:idence Of such abandonment was' competent and' ample, and the ruling andcha'rge of the court below on this subject were right."
It is uI)necessary to pursue this matter further. It may be laid down as a general.rule that the mere knowledge and assent of his immediate superior to a violation by an employe of a known rule the company-theempl()yer-will not, as a matter of law, relieve such. employe from the consequences of such violation. The judgment of the court below must be reversed, and the case remanded for a new trial. NEW ORLEANS & N. E. R. CO. et al. v. THOMAS. (Circuit Court of Appeals, Fifth Circuit. January 2, 1894.) No. 156. 1. CABlUERS....,CoNTRIBUTORY FOR. JURY.
Plaintifr, traveling on a cattle tri\Jn. with his cattle, reached New Orleans, where it was necessary to have his cars switched ,a short distance over another. road, to the slaughterhouse. With the acquiescence of the train hands of this road, be climbed on top of a car, to go with his cattle; but on the way the car was run into \jyanother tfllfn, 'and upset, whereby plaintiff received injurIes. Plaintifl; and other cattle men had before rid· . den on top of cars, with the consent of the train hands, but such riding was prohibited by a general order of 'the company. He testified that .be knew it was a dangerous place to rIde. Held, :that the question of oon· tribnt:qry negligence was a proper one for the jury, and there was DC) error in refusing to direct a verdict for defendant. Pardee, Circuit Judge, dissenting. SAME-INSTRUCTIONS.
2.
It was proper, under the circumstances, for the court. to modify are, quested charge· by, adding that, if the company had bela out their em-
FEDERAL REPORTER,'.vOl.
60.
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ca1;tle,
and.
...t ().:@:tl$ .. the:; sQ ....enttop.la1n..tJtf'.'..beingCarr!..eelon.the.. train consented.' ,there was a consent. ,by the Plr'Cuit
dls,sentlng.
.
uhthe Circu,1t.Oourt of·tl1eUnlted· States for the East· ern,l>la,tiictof:.1"9uisia.tl800, .' " 1,'hilitf)Vllt.f,:an, action by! Oscttf O. ThoI.XJil;S:against the New Orleans New Orleans &:Southern to l'eCQ:\l'el!. damagelJ'for p.ersonal injuries. There and· judgment for· plaintiff; IUld defendantsbriJig ·the ca$e tp this , ...' . E.;R Farrar, E; :B.m-iIttschnitt,and H. H. Hall,for plaintiffs in erl'OI"': " " ': '.: " w. S. Farkerson,'fordefendant in error. . . , Befo't<ePARDEEan<fMcCORMICK, Circuit Judges,and LOCKE, [email protected]:dge·. , " ' , ," , ,,·)·1
McCORMICK, Cil'CuitJudge. . The defendant in etror,a citizen of' brought this /tction in court fl;>r the eastern of the .plainti1fsin error, corporations cre· atedunder the laws of Louisiana,claiming,damages for ,personal alleged to 'havf been inflicted 61J him by thei'r, negligence. thfi,t 'lIe two: of from .Epes, Ala., to :New Orleans, QVeI',the Alabama.& Great Southern. Railroad and its, connecting "un.der what.is known as a ''live-stock contractt by the his contl'llct he was to load, water, aDlJ'tab all proper care ofsrodstock, and for tlIatllfuiP6se' ,he. traveled/lob! lheaame. train With' the, stock: from Ep¢S',to Orlef\ns, over"i4e'lineS oftl1e' Alabama &; Great South· ertl''Raiti'Oad, the' Northeastern Rliilroad, Company, and'1\IUfNew Orleans &, SOuthern Railroad Company; "that the cars containing his cattle were transferred from the New Orlems & Northeastern Railroad Company to the New Orleans & Southern Railroad Company for ,the purpose of transporting them to the slaughterhouse, thepoiht'" of destination 'in New Orleans; that while moving o.n:thetnackofthe·New·Orleans & Southern Railroad Company, and at a point where that track is crossed at right angles by the track of the New Orleans & NortheaStern Railroad Company, a loeoJll9tive of the latter company. ran. Into the oaTs ooDtaininghis' oil which he.'Wais riding, 4¢raUed said carS",lUld severely that said collision resulted from negligence of the employes of the plamtiffs in error·. New Orleans & Northeastern:Bailroad Company, besides the' general issue, .avers that its contract for carriage terIDinated at. tl1epoint where the transfer of the carSwa,s made to the, track, of its c()plaintifi in error; that under the contl'act between plaintiffs in error to convey said cars from New Orleans to the slaughterhonsethe.defendant was not required to load, ll1lload, feed, water, and care for said stock, and was not required to travel with his cattle that short distance, but should have ta#:en 'ra ,street car, WWC.h is the method of employedto reach the Slaughterhouse; that, no prOVISIon had been
NEW ORLEANS &: N. E. R. CO. tl. THOMAS.
881
made by the New Orleans & Southern Railroad Company for the transportation of passengers, cattle owners, or others from New Orleans to tb;e slaughterhouse; and that defendant in error was guilty of contributory negligence in riding on the cattle cars in question.. The New Orleans & Southern Railroad Company, besides the general issue, denies that it had any contract with the defendant in error, and avers. that under a contract between it and the New Orleans & Northeastern Railroad CoI!1pany it did switch certain car loads of cattle a distance of only one or two miles from the junetionof its track with that of its coplaintiff in error to the slaughterhou,se; that the defendant in error was not required to travel with said cattle, and bad no right to do so, in or about said cattle cars; that it had made no provision for the transportation of the defendant in error in or about said cattle cars; and that he, in riding on said cars, acted in direct violation of the rules of this company, and was guilty of gross contributory negligence, which contributory pleads as a defense to the action. There was negligence it a verdict and judgment against the plaintiffs in error, to review which this writ of error was sued out. There are 13 assignments of error, 12 of which rest on bills of exception taken to the refusal of requested charges, the modification. of requested charges given, and to certain portions of the general charge of the trial judge to the jury. These bills of exception cover 75 pages of the printed record. The first of these bills of exception, and the basis of the first assignment of error, purports to embrace all the evidence admitted on the trial, and on which the plaintiffs in error asked the trial court to instruct the jury peremptorily to for the defendants (below, plaintiffs in error), on the gropnd that. on the facts disclosed by the evidence there was nothing left in the case but questions of law, and that it appeared from the facts as a matter of law that the plaintiff (below, defendant in error). was guilty of contributory negligence, and could not recover. This the trial court refused, and the plaintiffs in error now urge that the circuit court erre.d in refusing to take this case from the jury. .It can hardly escape observation that, in the judgment of the very able counsel who generally represent parties of the class of these plaintiffs in error, the error here complained of is one into which the judges of the circuit court often fall. The second bill of exceptions refers to the facts shown in the first bill, makes a fair argumentative statement of what the evidence tended to prove on the basis of which plaintiffs in error asked a charge which the court gave, with this addition: "But if the jury find that the defendants. by their conduct, had held out their employes to the plaintlfl' as authorized to consent to his being carried on the train with his cattle, and such employes consented. then there w1Il be a consent of the corporation,"
The plaintiffs in error urge that the circuit court erred in thus· modifying their requested charge. The bills of exception from 3 to 12, inclusive, each refer to the facts as shown in bills numbered 1 and 2, and the point of all and of each is that the trial judge erred in not instructing the jury as
382 tnatter"ol1hW1 'thlt 'tb'e1 . . . . .... ; that . . . .·. r6vi ion' of 111d.',Ifi.,.. ... ':.'. r,.ec.o,'?e. '·.,.. .I .ija . . . ,.n"a.tt.a..ned t.o hO.1..(1, t9, fln ii a.tti.on. Ia:.lt ..... t to.· .a.·.·:tl1ltFby jtiry. .' e.venparti.e.s. ,*.h.O bribg'!Wtibns'litaliw a'galliirtrallroa4 'Cot:(loratib.ns, and that. the persi$tehlfl'emrt; to pn.sh:pre 'cedents to ,the'poillf dfreqtiirini( trial jUdges' dooi(fe '"of law,tlie, UJslleB most commonly joilied' :.!n fC,Me.,B."W. . .. · . y.:or., uries is apt]. . not be varyIng of the swelling, Ct1-rrent of reWrted' opinions, which]'already the" assizes, .' so ,of proof cases, as to,convert the questIOns as tq whatil3 neghis contriblitory negligente issues,of':law instead'o!'faet;,''\Yhile, in oll,rView,ihe l1uthorityofadjudged cases is that, ,negligence the' one' part or. contributhe otb:el"!s a. question of fact, to be .determined instructions.: It is, of' course, elementary that wh61hei" 'there is anyl is' aiquestion of law. . But we must that. in applying 1;his role' We do not substitute the jUdgtI1ent"of'the jUdge that tbere is evidence for his judgmen'tthat there is n()' :rn' this ease the trial court was not even asked to charge' the jury that. there was no evidence to charge in' e1'l'ot··.with .negligence, but". on ail issue on which they; had the burden, of proof, .the trial judge was asked to chargel:\smlttter of laiw' tha1Jthey had ma4eout their case. We do: not flkI called. btiJtoreview the e"\1dence in this case, M we would lonati appeal,from 'a decree! in equity, and it, oply that;:irlfOUr, -tiew, the :proof in this the take the whole away from the jUry', and i bt modifying l'eqhestedeharges that he' gave, and in refusing refused. And that tMpart of the general charge noeti'Or for which the I(!ase should 1;)e reversed. The follOWing (lases suppott· this opinion: .Railroad. Co'. v. 'Powers, U. S. 43,13 :Sup. Ct. 748; Railroad CO, v.Converse, 139 U. S. 469, 11 Sup. Ct.569; nailrOad Co. v.McDade, 135 U. S. 554, Sup. at 1044, and clJIses therein 'cited; Railroad Co. v. Stout,17 Wall. 657; Co,"v. 147 U.· S. 571, 13 Srtp.Cl557; Kane v. Railway Co. j " 128" U. S. 91, '9 Sup. Ct. 16; Aerkfetz v. Humphreys,.145,11. S.· 418,'12 .Sup. Ct. 835;;' Railroad Co' .·v. Horst, 93 U; S. 29] ;Ra:i1 way Co. v. Ives, 144 U. S. 408, 12 Sup; Ct. 679; :mddy v.Wanace,'IC.C;·A. 435, 49 Fed: 801. ' The judgment of the' eJ.r&mt 'court is affirmed. W...
' '...1i 1
ih: eh-6r
gUiltY of contribu-
on
r,· 1
.The evidence in the case is. brought up in a somewhat lengthy l1ill' of and aU the bills of eiception coverT5l printed pages of the transcript; bllt the evidence is not conflicting, on the main points involved, nor' are the bills of exception unnecessarily prolix. Tpeet.idence . shows 'without disp1J.te these facts, shortly stated: The plaintiff in the court below shipped two car loads of
NEW
"
""
,.,
&: li.. ,E·. . R. ,,', , .
.'
THOMAS.
383
cattle over theAIabanl,a and its connections from EPes, to :New Orleans, under a special con· tract, requiring hiin to load, unload, feEld,and water his cattle, etc., and impliedly giving him transportatl()non the same train, with his cattle. perforpled, an<l .and his cat&, Great Southern Railtle were safely. brought over the road l its connection the New, Orleans & Northeastern Railroad . to the terminus of the. latter in the. city of New Orleans. When the plaintiff, with his cattle, reached.. New Orleans, his agents gave directions to hav:e the cars switched to the slaughterhouse in the parish of St.Bernard, whereupon the Southern Railroad COQlpany, un'd¢r a contract it had with the New Orleans & Norththe switching of cars oV,er the eastern Railroa.d Company, tracks of both. companies, undertook the switching of plaintiff's two and one other cattle car to the slaughterhouse. The pla1ntift', who had traveled in the caboose on the cattle train in coming to New Orleans, at the suggestion of the train hands of the Northeastern Railroad, and with the acquiescence of the train hands of the Southern Railroad, climbed with his satchel on top of <me of the cattle cars, to ride to the slaughterhouse. The train of three cattle cars, with no accommodations or provisions for passengers, was backed rapidly out of the Northeastern yards; but when crossing the track of the Northeastern road was run into by another train, also backing on the main track, the car on which plaintiff was was thrown over, upset, and the plaintiff thrown off. severely spraining his ankle. The Southern Railroad Company had, by written notice issued to its employes, and posted in its depot, where it transacted business with the public, forbidden all persons-except the employesfrom riding on the cattle trains without an express permission from the freight agent, which it is not contended plaintiff had. The plaintiff and others, in cases of former shipments of cattle over the same route, had, with the consent of train hands, ridden on the top of cattle ca.rs when the same were switched by the Southern Railroad Company to the slaughterhouse, and plaintiff testified he knew it was a dangerous place to ride. There was no necessity for the plaintiff to ride on the cattle cars to the slaughterhouse, .as the distance was short, and plaintiff's cattle were not to be 10ade<J, or unloaded, fed or wawred, en route; and, besides, there was a line of street cars, which furnished the usual conveyance to and from the slaughterhouse. There was no evidence showing by whose or what negligence the collision occurred. The only conflicting evidence is with regard to the extent of the plaintifI!s' injuries.. The question in the case is whether, under the facts of the case, the plaintiff was guilty of negligence; and the answer depends on whether the consent of the train hands of the Southern Railroad Company, on the occasion plaintiff was injured and on previous occasions, that the plaintiff should ride on the top while they were being switc4ed, in spite of the of cattle of the cOIllpany forbidding such riding, was ,sufficient to establiSh 'a I'lS would JUStify tij.e plaintiff in so fi<Jin,g on the top ',1 \ I:·, "" . " , .. . " ,
884 'of)tllel,ckfllj}e 'cars, althMgb: he' tt .wItS . 'make him. bf the company, h¢. was a ,stra.nge,.;}ft,:not a trespasser. " ' ! ! , ' ; ' . , : " ' " " : ' , , ' , , ' ... , " held in favol'!o1'the sufficiency of suchconse;nt to· 8itb.eSh '"Such usage; for, althgti,gh the 9,1,1est1on was apparently letttol'thejury, of the Judge maintain 'the prqposition in the clearest terms, and are otliei:"wise meaningless and misleading.> Besides, as the. evidence was entirely withOut conflict a,nd undisputed on the poin1;, there to be done by the jury but apply the law to the facts, anlla refusal to direct a verdict for was practically a verdict for the. plaintiff. In gellerally discussing the respective duties of judges and juries in cases df'D,egligence, the opinion of this court says: "In tltlscase trial court was ,even asked to charge the jury that there wesno evidence to charge thepta1ntlff In err,orwlth negligence, but, on an lssll$on which they had the burden of proof, the trial judge was asked to ehal"seas.a matter Of law that they had made out their case."
I SupJl(>Se that this statement, to the request of counsel for plaintnrs in error asreeitedin the first bill of exceptions, to wit: ''To find a verdict for the defendants 6n. the ground that on the facts declared' by the said evidence there was l10thlng left In the case but questions of law;snd that It appeared from the' said facts, as a matter of law, that the was guilty of 'contributory negligence, and could not recover."
Now,mthecase of Railroad Co. v. Jones, 95 U. S.439, which was ca.se where evidence was offered on both sides, and where the railroad company was guilty of negligence andthephtintiff was guilty of contributory negligence, the supreme'court said: "tf the 'company had prayed the court to d.irect the jlll'Y to return a verdict for the:dlilfendant, it would have been the duty of the'edurt to g!vesuch dlrectloi;l,@<l error to, refu!le;" citing respectable authorities in support thereof. ....
An<Llij.:Railroad Co. v.Houston,95 U. S. 697, a. case where the the railroad company was admitted, 'but the contributory negltgence of the pl.aintiff's wife, the person injured, was sworn, the supl'el1e court, after reciting evidence much ttldre involved than in the<:ase in hand,said: "Under:t]lese circumstances, the court would not have erred had it instructed the,j\U'Y, as requested, to render a. verdict forthedefelldant."
i.,:','!
The trderuIe seems to,'bethat,when the plaintlltls evidence does not show foontributory negligence, the ,burden of proving it is on the v. Horst, 93 U. S. 291) ;,but, where contributory negligence is shOwn by undisputed eviden.ce, whether offered by the plaintiff or ,the defendant, and such negligence will in law deteat a recovery by'p4J,intiff; it is }?roperforthe defendant to ask a peremptory instruction in his, favor, and in such a case it is error on. the part of the trial court to refuse. The q1iestlonraised by the first bill. of exceptions is whether the evidence in the case shows ,sueh undisputed facts that, as a matter of law, the defendant was guilty of and, as said above, this 011 the, sufficiency of tile usage proved. , Now, it seems to me,foi":theSouthern Railroad Company to be
NEW OltLEANS &: N. ''E: R. CO. t7.THOMAS.
885
liable 'to the defendant in fm."the injurleshe receivedwbile riding on top of the cattle cars,-a place which he says he knew to be dangerous,--and. while the, cattle cars were being switched, it should appear that he was so on the cattle cars with the consent· of the SOuthern Railroad Company,' either express or implied, and without knowledge of the danger and risk he assumed; or that there was a contract of carriage as to him with his cattle while the cars were being switched, and no safer place was furnished him to travel. Neither is proven nor can be fairly inferred from the evidence in tb,e case; on the contrary, it is proved without contradiction that the Southern Railroad Company had, by notice issued to its employes, and published in its depot, where it transacted business with the public, expressly forbidden travel upon cattle cars on its route. It is true that there was evidence tending to show that the plaintiff had never seen this notice, and that on previous occasions he and others had traveled on cattle cars of the Southern Railroad Company to the slaughterhouse while the same were being switched from the terminus of the Northeastern Railroad, with the consent and direction of train hands of the Northeastern Railroad Company, and, inferentially, with the knowledge of the train hands of the Southern Railroad Company; but I take it to be clear that it ,was not necessary for the plaintiff to see any such notice, for he was bound to know that, without a contract of carriage, he had no right to be there; nor can the permission of train hands justify him, in the absence of a contract of carriage, in placing himself in a dangerous place, or in fact in any place, on the cattle cars, for he was bound to know that such permission was beyond the scope of their authorif\y, and that he cpuld only act on it at his peril. That the. plaintiff, by reason of having previously ridden on the cattle carS of the Southern Railroad Company in violation of the rules and orders of the company, could have acquired the right to ride on top of the cattle cars of that company at the time he was injured, isa proposition which, I think, for the first time gets judicial sanction in this case. As it appeared. from the undisputed evidence that the defendant in error, plaintiff, below, had no right, by contract or otherwise, to ride on the cattle cars while they were being switched by the Southern Railroad Company, and as he knew that so riding was dangerous, the proper application of the maxim, "volenti fit non injuria," required an instruction of the court to the jury directing a verdict for the defendants. In Railroad .Co. v. Jones, supra, it is laid down as follows: "Negligence is the failure to do what a reasonable and prudent person would ordiparily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the eXigencies of the occasion. See Whart. Neg. § 1, and notes. One who, by his negligence. has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff, in such cases, is entitled to no relief. But where the defendant has been guilty of negligence also. in the same connection, the result depends upon the facts. The question in such cases is (1) whether the damage was occasioned entirely by the negligence or im-
v.60F.no.3-25
OJ: bl,n1self so far contMbtlted to thel , . e ltls' oft' ,\>fo'Want' Of ordinary carW'and caution til". J . f tOl"sucli !Want' of caution on Ji,ifli!part, the would notfJlav.$Lballpenedi".!,Jl tl1t: .former cai!e. .. e.lllalPtflfS,),5J3; '. . '" CPl. v. 1.n . ' '.·. tte...1'.,. he 1. . ' In.o,'"'".: '.! Tu.D::. Y.'.' W. arwan, ...· 1,.s..' '. P. G. ll,lllast, . Rallroad Co., .3''M:aeEt. &: W. 244,aes v. Mann, 10Mees. & 'WI. D46, Olayards v. De(N. S.) 74; thick; 12 ' Q.B. Illce illi9." la..
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the trilll'ofthiS the 9th, 10th, and 14th dil.31'8 the1toil; EdWllrd '0. Blllin'gs, United States district: jlldgli, hOlding 'the' 'e1t<;Uit court, ,'and a jury, 'on the issues of law and by thl! the facts as set forth in b:W, 11P-d 2" t¥, f,or the 4efendants then and . the coutt. to' cliarge, the. jury 'as. follo'\'ts; . ''i'hat the plaintiff, 'llsamatl of 'ordinary pl1l.dEince and irltelllgence, was bol1lidJ to know that a f1'eight'trlJ.1f11 wlthoutac(!ommodation for'passengers, was notlIi.tended ·for the eiQ'(1l1gt,of persons, AAc'l tAat be wAA to ascertain for hims/llf, uPQP. ,SQuthern train his caitle, Whether. he had ,a ,J;'ight to be there'or1lOt; that ,he was bound to usere4$oitllble dlligettce'ttl ft.Mout what'the tules and'l'egulations of that if the''ju1Vlln'd that by the use;6f' such reasonable dillpWntiff could fQ.u.nd .out that: the rules .Qf company prOhibited... tb,e ,,1. o.nthe '. t.9P a.tUe ca.rll", then he if! c.p.argeabl.e in law with . . knowleq.ge of the rule, and they must flnd for. the (lefetidants,'....,.which instructiont)ie court gave to the'jury, but with the following amendment or 'It the plaintitf had good reason to believe from his former deal1ngl$ W1tllthe It wa/!llntended by them that he, as the owner oftha! stock, on top, of theclI,ttl.e. C/lr,. then he was rightfUlly Which' addition and modiflcation the defendants' counsel then and tnere exeepted before the jUry retired, and tetiders this, their biU of exceptions, which is duly allowed and signed accordingly."
It is assigned as el'rorthat the court' erred in adding and modi· asked. It to me tb.at the modiflcation fying was unwlltrapted. If the ,plaintiff knew that the positive rules of the defendant' prohibited the riding on top of cattle cars, he could former. dealings that it have had' "no good reason to believe ;was intended"that. he, as owner of' 'cattle, Of otherwise, should go on. top. oft.ne.". cattle ,.'I.,.,'.·.8Jld.there.f.oreo the Chit:rge, wi.th the addi· . . tional anti erroneous;" .
Tb.e
Inthe"r,etord is as follows: .
, "Be it retnembeted, that on the trial of this cause on the 9th, 10th,. and '14th days of March, 1893, before the b6norable Edward O. Billings, United 'st8.tes district jai:lge, holding the cll'cult conrt, and atjury, on the Issues of exeeptlq¥s,;Nos.1 and,2,the counsel for the defendants requested the court tocbarge ,the jury as. follows: 'That if. ,the jury flnd that the governing ofllclals of th1:i'New Orll!ltns and Southern RailrOll 4.. did, in . .. 189.l.,·.,1.S.lilue a order fOllOW.ing words: Orleans ,aXMi No; 34 St. Charles Street. ;l.A. ent a:tl(l General Manager; H. S. Secretary and [lJop;f.l" La.,. .. Paul Baker, Esq., . ,,1 1:l\atboys atidqt1lel' parties occasionto the roQfof the catally ride HerE!ai:ter the, employes of tle the train, .u1l,4er ,any, cl1'cu!Dstancei!, win, cattle trains, ,from the f1'eight agent, Mr., t.Qng. You will rewithout tm.;l:l, ;With' this office, for given. by Mr. [Signed} secretary,"-prohibitlng all Long.
UNITED
sTATEs' v.
BOARD OFLIQt1IDATION.
887
persolls, not its own employes bandling the traiI)., from riding on the top or cattle cars between the city or New Orleans aM the slaughterhouse without the written permIssion ot. the iocal agent, and that ,notice of this written Order was gIven to said employes, and a copy of it was posted in its station at its depot in the city of New Orleans, where it transacted its business with shippers and passengers,-then it was under no legal obligation to give any other. or pn-ther notice to the public of sucb rule or regulation. And if the ji:iry .fUrther find tbat the plaintiff was at the, time of bis Injury riding on tl;1e ,top of a cattle car, in violation of said general order. even though he was there with the permission of the trainmen, he waS, a trespasser on said car, and the company owed him no duty except that of not wantonly injuring him. And if the jury further find that the plaintiff would not have been injured if he had not been on the roof of said cattle car, then, by being there under the above circumstances, he was guilty' of contributory negligence, and cannot recover,'-which instruction the court refused; to which refusal of the court to give the said instruction the defendants' counsel then and there excepted, before the jury retired, and t,nders this, their blII of exception, which is duly allowed and signed accordingly."
It is difficult to conceive what the railroad company could have done, more than it did as recited in this bill, to signify to the defendant in error that he was not authorized to ride on the top of cattle cars of the Southern Railroad Company. The argument seems to be that, because the trainl hands permitted him to go upon the car, and did not peremptorily eject him as a trespasser, he thereby bec,ame a passenger, and the case seems to require'that, although voluntarily-and, as the evidence shows, unnecessarily-put himself in a place known by him to be dangerous, yet, when injured, he can legally recover damages from the railroad company. .' In my opinion, the trial court erred in refusing to instruct, the , jury to find for the defendants, in modifying the instruction asked as given in the third bill of exceptions, and in refusing the instruction as to notice given in the fourth bill of exceptions, and that thia court errs in affirming the judgment of the trial court.
UNITED STATES ex reI. FISHER et aI. v. BOARD OF LIQIDDATION OF CITY DEBT OF NEW ORLEANS. (Circuit Court of Appeills, FIfth Circuit. No. 165. 1. MUNICIPAL CORPORATIONS-BoNDS-MANDAMUS-EvIDENCE.
January 2, 1894.)
Relators, who held a judgment against the board ot school directors ot the city ot New Orleans, applied for a writ of mandamus to compel the board of liquidation ot the city debt to issue bonds in liquidation ot such judgment. tJIeld that, on such application, evidence that a special tax had been levh:id by the city to pay the indebtednes& held by the relators, and that all claims but the school lIidebtedness had been funded, is irrelevant.
SAME-BoARD OF LIQUIDATION OF NEW ORLEANS-POWERS.
Under Act La. No. 74 of 1880. which authorizes the municlpa:I government of the city ot New Orleans to iBBue bonds in pilymentof the valid ot the city, the government alone .Is unbonded Invested with 'authority in the premises; andinandamus will not lie agaInst the b9ard liqUidation or tbe cIty debt to compel tbem to issue ac.cb bonds. '