CLUNE V. RISTINE.
.745
only matter contained therein, pertinent to the issue raised, was contained in section 17, and related to the amount which the plaintiff would be entitled to recover, in case the assured at the time of the accident was engaged in busineSB more hazardous than that in which he had by his representations then made been classed or rated. Clause 4 of the policy sets out the agreement made by the insured in regard to rating as expressed in the application, and expressly provides for the contingency of injury to the assured while engaged temporarily or otherwise in any occupation classed by the society as more hazardous than the occupation under which the certificatt or policy was issued. The defendant's manual containing their classification of risks was also received in evidence, so that there was nothing in the application relevant to the issue which was not brought to the attention of the jury. The learned judge clearly set forth to the jury in his charge that. if the assured had met with his accident and consequent injury while engaged in a more hazardous occupation than that in which he had been rated, the plaintiff would not be enti· tIed to recover the full amount named in said policy, but only the $500, which the policy provided should be paid to one engaged in the more hazardous occupation. The jury had before them for consideration all the evidence which was necessary to enable them fairly to determine all the questions of fact which were properly submit· ted to them. We fail to see how anything in the excluded application would have aided them, or tended to have changed the result,at most, its evidence would have been but cumulative. Under these circumstances, there was no reversible error in refusal to receive the same. "The court will not reverse for error which it is evident has done no injury to party complaining." Chase v. Hubbard, 99 Pa. St. 226. To the same effect k the case of Galbraith v. Zimmer· man, 100 Pa. St. 374. We are of the opinion that the verdict should not be disturbed, and that the judgment of the circuit court should be affirmed. CLUXE v. RISTI::\'E.
tClrcuit Court of Appeals, Eighth Circuit. No. 1,032.
May 1, 1899.)
1.
RAILROADS-'-OBSTRUCTION ON TRACK-NEGLIGENCE.
A rock weighing some 200 tons, which was embedded in the face of the slope of a. railroad cut along the side of a mountain, slid from its place, In the night, upon the track, and, an engine attached to a train, coming in collision with it, was wrecked, and the engineer killed. The cut was through a formation known as' "slide," consisting of loose boulders em· bedded in clay or gravel ,and the slope stood at an angle of about 45 degrees. The road ,had been built about eight years, during which time no change had been made in the slope, and the only Inspections had. been made by observations from passing trains or hand cars. The bank was regarded as safe by the 'company's engineers. There had been no recent rains, and no night patrol of the cut was being made at the time. Held, in an .action against the railroad company to recover for the death of the engineer, that such facts did not warrant a peremptory instruction for the defendant, but' that ·the question whether it had exercised ordinary
94 FEDERAL. REP9RTEH.
care, . to construct and was lotie for the jury:
its track in a reasonably safe condition
2.DAMAGES:C...:ACTION FOR WR01\GFUI, DEATH-EVJDF.NCF. IN MITIGATION.
IIHihaction for· wrongful death the defendant Is not entitled to prove in mitigation of damages that .p!ldntlff has received Insl1rance on, the life Qf deceased froID. a collatliral source wbolly Independent of defendant. .Sanborn, Circuit Judge,
In Error to the Circuit Court of the United States for the District of c o l b i ' a d d . · , Edmulld .lJ'. Richfj.rdson (Thomas M:. Patterson and HOIl'ace N. Hawkinl;j, on tbebrief), for pla,intlliin error. Henry T. Rogers (LuCius M. Cllfbllert, Daniel B. Ellis, and George C. Preston",qn, the .brief), for defendant in error. BeforeiOALDWELL;SANBORN, and THAYER, Circuit Judges. . . ".':1 ", '
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THAYER,Circuit Judge. This record presents the general question whether ,a peremptory instruction to return a verdict in favor of GeorgeW. JRistine, receiver ,of· the Colorado Railroad Company, the defendant in error and the defendant below, was properly given. At 1Jheconclusion o:lLthe plaintiff's testimo>ny the facts which had then beett lestablished were substantially asJollows: On, August 21, 1894, J; R Blpeker, who wasthe'ill1lll i(i)f .Mary E. Clune, the plaintiff in below,was employed as a railroad engineer, and error, and was engaged in.runningfreight !trains ,over ,the railroad of the Colo, rado Mi(lf}and Railroad CompanYfbetween Colorado City and Leadville, Colo; On the night oftbat day; as he was running his train through Elev\:!n Mile- cafion, which is some distance w,es! ofFlorence, Colo., aJl.d had pI'QMMM. up theoonQI). about eight milelf, his engine Came in con, a rockHhat had'slid down upon the track from the &!Jope side oHhe trackdn ,which it had been embedded, ,the , that the 'eagine and: the ,plaintiff's son was instantly killed. The rock in question was a granite boulder, trom 22 to 25 feet long, and was found to befrom 5 to 6 feet high, when it landed upon the track, and weighed many tons. The mountain on pf wl}ere the accident occurred the south side of the rose at a sharp angle to the, height of about one thousand feet, and the foot of thl!'molnitainhafibeeh'scored away so as to· form a berm, or shoulder, on which to lay the track. The river or stream which flowed through the canon was on the noctn siae of the track, and immediately " had been done,at the foot 'of the mountrott on the" soutli'side of the ,streritn to 'fortil' :the roadbed was .. ,:its 'Of ;,lihd . . of boulders ,of varIous klQdsembedded.ilij,;:clay. or gra:'ofet, ,Tlile rock whIch i tbeaccident"oslid' :out of the: slope at ,then eouth side: of the track, been: when the grading was dobe. Tliisslope 'degrees"it 'rhe qqtt9$ rock as it lay in theslopebefo:re it to 30. feetJrom the track, 3iccording to the testimony ofthe plaintiff/s witnesses, and at a height of about 6' 01"7 feet "above the trlickF.Inits 'descent it .pushed out which::was there 18idon a filL It had rained a very little .night. oJ 'al;j:Jhe h?Mll left Flor-
on
CLUNE
v.
RIs'fnm.
ence, but there had been no unusual storm or flood or seismic disturban<;e either that night or fQr: some time previousl.)'. The was, not unusually dark.. The moon appears to night of. the have at intervals"but at the place -where the occurred the,track lay in,tbe shadow Qfthe mountain, which made it difficult to see. The beadlight of the engine, for some reason, bad not bl1i'ned very brilliantly on tbenight of the accident. ,The deceased was at his post when the accident ol;curroo, and saw the rock a. moment or so before the, collision, and signaled for brakes, bU;t not in time to Pfeveut the disaster. ' '' The defendant did notdeumr to the case whicb was made by the plaiI/-tiff's testimony, butintrodu,ce,d furtber ,evidence, which was to the following effect: The railroad in question had been in operation about eight or nine years previous to the accident. After the contractors who constructed tlle road turned it over to the Colorado MidRailroad Company, that company sent a gang of men into Eleven Mile canon, to dress up the track through the cafion and flatten the slopes. They, left the particular slope wb,ere the accident occurred .at an angle of about 45 degrees, which was deemed safe." No special hadever been made of the reck .which eventually slid out of ascertain if it was safe, except such visual examination as couldllemade by' an inspector or engineer traveling throllghthe cano1:). on a moving train or hand car. To an insPector thus travelthrough the canon and ,viewing the rock in question, it extended lengthwiseofthe cut about'22 feet and up the slope about 16 feet. was as largeas a freight car" and the lower edge of the rock neareSt to the track ,seemed to have a bearing on other broken to have formed rock. From its bottom or lower edge the rock theJace of the slope to the height of 16 feet, but it jutted out therefrom a few feet. At its lowest point it was 5 or 6 feet higher than the track, and, from 10 to 2(} feet distant therefrom. Its weight was about 210, tons, and the soil in which it was embedded was known to be from the mountai'n. When the rock slid out of place on the night of the accident, it was found to be wedge·shaped; that is to say, the under side of the rock upon which it rested was not flat, but inclined upwards to some extent, so that it would more readily slide out of place. The chief engineer of the railroad, who had been through the canon as often as ,six times a month for several years prior to the accident, and had made a visual examination of the road on such oceasions, testified, in substance, that he had seen nothing at the place of the accident which led him to believe that the. rock in question was insecure. Another witness testified, in substance, that it would have been impossible to tell whether the rock was insecure by sounding it with llhammer, owing'to its great size, and that its peculiar wedge sha!?e was not manifest until it had slid out of place. The testimony. for the receiver further showed that about August 1, 1894, he had withdra'Yn the night track walkers from Eleven Mile canon, and that from that time forward until after the accident occurred, the canon was not pa,trOlled but once a day, and then by daylight. This was because was supposed to be over, and a night patrol wasJI,ot deemed 'necessary.
748
94 FEDERAL REPO?TER.
JJpon this showing the trial directed a verdict for the hol4ing, apparently, that :the facts heretofore recited could not give rise 'to any difference of .opinion, and that all reasonable men would, of neyesSity, agr-ee that the defendant was' without fault. We not 'able to concur in that view of the ease. '. It.is an elementary rule that a railroad company is u'nder an obligation,: both. to its employes and to the traveling publi.c, to exercise' ordinary care both in the construction and maintenance. of its track and roadbed, to the end that they bereasolllibly'sflfe 'for the passage of traius; and the proper diScharge of that obligation makes it the 'duty of a railcompany to be observant of all objects in close proximity to its track, which in the ordinary'cou,rse of events may impair its safety. If rocks overhang .its track, Or ldo,se rock is embedded in the. slopes in such aposition that they may of cutsthrough which its track be displaced by the ordinary acti()n of the elements, and precipitated upon its track, it should either remove them, or take other adequate to guard agamst thedanger, and render its track reasana.In the case in hand weare unable to say that all reasonable men, listening to the evidencewhlcl;J. was adduced at the trial, would have concluded that the receiver 'had, performed his full duty, with respect to caring for the safety of the track intrusted to his charge, and was llotchargeable with any negligence. The rock which occasloned the accident was known to be a loose rock. It was also Imown to be embedded in slide or wash on the face of a steep, slope, and that ltwas 'of enormohs weight. If it did not rest upon a secure it was certain to faU sooner or later, and in its. descent was sure to, wreck the track, and might occasion great loss, both of life and Besides, the 'continuous actio)} of frost andtloods, and the vibration caused py moving trains, would have a tendency to render it more' insecure each year unless it rested upon a rock foundation. Iuview of these com;iderations; and in 'riew of the fact that the. evideiice showed that the track through the canon, was not patrolled at night, although trains ran at night as )"ellasby day, 'it is very probable, we think, thM many persoriswould have ['eached the conclusion that in tbeex:ercise of ordinarv care the, defendant should have taken the precaution to have ascertained with greater upon what sort of a foundation the 'rock rested, and &hould not have trusted to a visual examination, madehastilyan(l. ati'r'1tervals fromthe platform or windowofa moving train. It is mllnifest from what "Was discovered when the rock slipped from its that the defendant would have been guilty of gross carelessness if the true nature of its .foundation known prior to the accident, and it had been allowed to had rerrmin in .the,slope unsupported: ... Inasmuch as a. to the evidence was not interposed at:the c.onc1usion of the plaintiff's evidence, ea,se seems to have been tried below, bOth by the court and counsel, upon the theory that th,e ,fall of the rock from a position ill c10se proximity to the track, without any imme(iiate cause except its own weight, would,. iil itself, warrant an inference. of negligence. according(y introduced testimony, as above stated, to The rebut such inference, and to show from the appearance' of the. rock while iiI1 phice that his servants llnd agents had not been guilt'9f any'
maY
CLU"E V. RlSTINE.
749
negligence. But whether the testimony thus offered in behalf of the receiver was entirely trustworthy, and whether, if in all respects true, it showed the exercise of ordinary care, and absolved the receiver from all blame, were each questions for the jury. In a given case it is generally the province of the jury to decide, in the light of their knowledge and experience, whether ordinary care has been exercised, since ordinary care is that degree of circumspection which persons of average prudence and intelligence would usually exercise under like circumstances. In a certain class of negligence cases the standard of duty has been so well defined and established by. judicial decisions that a court is entitled to declare that a given act or series of acts do or do not amount to culpllible negligence. But we are of opinion that the case at bar does not fall within the latter class of cases, and that it was the proviuce of the jury to decide the questions above indicated. On the trial of the case the plaintiff seems to have claimed that on the night of the accident there was some defect in the headlight of the locomotive, or in the oil which was being used, by reason of which fact it did not give the usual amount of light, and in that way contributed to some extent to the accident. But, as that branch of the case was not discussed on the oral argument, and as the assignments of error predicated thereon were practically aba,ndoned, we do not consider it necessary to notice them, and shall refrain from doing so. In the course of the trial the court permitted the defendant to prove, by way of mitigating the damages which the plaintiff might recover, that she had collected from an insurance company, after the death of her son, the sum of about $2,000, and for that reason was not entitled to recover to the full extent of her loss. An exception was taken to the admission of such evidence. 'Ve think that the testimony should have been excluded, and that the objection thereto was well taken. When an action is brought against a wrongdoer, he is not entitled to have the damages consequent upon the commission of his wrongful act reduced by proving that the plaintiff has received compensation for the loss from a collateral source wholly independent of himself. This doctrine is well established by the authorities, and is applicable to the case in hand. Suth. Dam. (2d Ed.) § 158, and cases there cited. On the second trial the evidence complained of should be e.xcluded. The judgment below is accordingly reversed, and the case is remanded for a new triaL SANBORN, Circuit Judge (dissenting). I am unable to resist the conclusion that there is no evidence in this case of any negligence on the part of the receiver. The test of absence of ordinary care here is: \Vould a man of usual prude?ce and sagacity have anticipated, and have taken steps to guard agamst, the fall of this rock, under all the circumstances of this case? The rock which slid upon the track was half as large as a car. It was so embedded in the side of the mountain that it was visible only to the extent of 18 inches. No ordinary inspection or test by the use of hammer or bar could determine that it would ever fall. The railroad had been constructed eight years before this accident occurred, and no cutting or grading or change in the face
94
REPORTER.
of tMmiJIlJ1llt.aimlibontth-e cock had<1Deen made duringall:tllis time. No flood; stO'Fm;YOllother: disturbanaerof .the earth Qr,of the elements occurred shortly!oojore:its'fall, it. A,. state of things;Qnce proved m!e?dst is.preStlllledito continue. When the face is!cMnged by grading; cutting, or of watchfrilnessandlcareis' imposed· duringithe first. few' mOnths· thereafter in .. ,But the longer order to a rock or i8i mountain smeren1ainsi!n;thesarne pc>aitiOJil' and condition, the less beeomes the need, {lIid. hencEl\:the duty,of'Wia.tchfulness, until finally the prol>ability thatthey will ,not roMe or'change in the absence becomes of some warning, and of some ,acti1\'le;i and oonclulDve. ,mhisrockihad remained·em,bedded in ,the mountain side unmoved "tltrough the stormsand';ctwniing seasons of eight years after the railroad was built :and the gl'8Jling doneaboll:t it, and I have been forced to the same conclusion as the trial judge that a man of ol'dinaryprudence would not have 8ntlcipated that it would fall without apparent cause orwarning,and.would not have taken any steps to fasten ,it in to inspee.t it more carefully than the re'" ceiverdid. :Andnjury. that'could nat.!have or ablyanticipated'llJI the :ptobable resu1tof"an actor, omission lays no fotmdation fOMlll action (Railway Co" v. :Elliott y 12,U. S. App. 381, 386, 50. C. 350,lfud; 55 Fed. 949, 952), 'and it .seems to me that thel'eivas no human PIIobability thot this rock would slide from its mountain bed afterithadremaineuJm the saUlt situation for eight years, and tha''l1 no mancouldihave anticipated it!!, ,fall as' the natural orprobableresll1t of afailure to inspeCtor secure;,it .' f j
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;
N.ATIC)NALACC. ,"
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SPIRO: . : I,
of Appeals,'Sec6nd' 'Circuit. May, 25, 1899.)
1\TQ. .'
23·..
JUDGMENT AB :EVIDENCE-AfrrJIlIlN'l'JCATION lW RECORD.·);
A judgmept ofa federal ,may be. court by an exemplified copy of the record containlJ:!.g the jUdgml1nt, under the seal of the court and authehtlcated by the c'ertlficate of the deputy clerk. .Every federlilcourt Is presUmed· to know the seal of every other federal court, and it will also be presumed In .favor of the certificate ,.of the deputy that the clerk was absent when It was made.
'I,h Error t9the ])ietrict of. New York.,
,'"
Stales' for the South'ern i . . ' ,', .
.'Jlhls is .of errol' by1;b.e defendapt iJ:!.. the Gourtbelow to review a judgment ,for the' plaIntiff, the actJonhavlng been brought upon a judgment in favor of the plalntiff' and against tlle. qeferidant rendered by the, circuit court of the United States f.orthe Eastern district of Tennessee.
'Roger A::PryQr; error. Hamiltoxi"Wallis, for (i .fendantfu error. Before. W ALJ.AOE .and SHIPMAN"GiJ.'cuit Judge.s, alid THOMAS, District Judge. ,::,1 . , ."'. .' ".) ··. !' .' ; .,',;. ' .
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