REPORTFlR,
vol. 49.
,. ' ·. ' reference to 'stock injured "or'killed by railroad companies upon their tracks, several' of the state.!l 'have passed statutes imposing more extensive dutielJ a'ndliabilities oIithe ·companies than walJiinposed by the common law/Some. of the states have enacted statutes making proof that an animal was injured or killed by a railroad company prima facie evidence of negligeneeon the partof the company. Astatutein Arkansas is construed by the supreme court of that state to have this effect. The court said: ; " ' "The true constrlictlon of the actin question is that, the killing being shown or confessed, the presumption ls that it done by t,he train, and it w!,nt, of care. At common law, the on1Mof proving t,hese facts was on 00. v. l'a1l1U1, 83 Ark. 816, 824. But the'statuteof Arkansas, here referred to, was not·llomong those put 'n,force in the Indian Territory by the act of It will be observed that the rule in that state,'that, the killing being shown, the law presumes that it resulted from negligence on the part of the railroad company,is,groun,ded a that the court .declares that at onus of proving, the negligencew8.s on the plaintiff. The plaintiff must prove the negligence as well as the killing; but,. as we polntedout in the case of Rauway 00. v. Washington, 49 Fed. Rep. 347, (at the present term,) these facts may be proved by circumstantial evidence,an,d, as .is shown, it is not such a difficult task as seem to suppose to prove .facts and circumstances from which a jury might rightfully infer both the killing the negligence. But in that territorrtbe inferenoe in such cases is not one of law,. but of fact, to .be drawn· by the juryJrom all the evidence in the case. The judgment of the court below is reversed, and the cause· remanded, with instruotions to g;rant a new trial.
pac.'.ftep. 910." ' ',. .
456; 'Milbum'v. 8e Mo. 104; Rm7wayCb. v.(Jeti!erl'21 Fla. 669; Railway Co. v. BolBon, (Kan.) 14 Pac. Rep. 5; Walshv. Railroad 111; Railway 00. v.Betta, (Colo. Sup.) 15 Pac. Rep. 821; Hei81eell(J:3 Amer;'&; Eng. R. Cas;, 555; Rauroad{]o. v. M"cM&n,37 Ohio St. 554; Railway Co. v. Hender8on,' (Cold. Sup.) 13
on
EDDY
et ale .,·. DULANEY·
(O£rauftCo'Urt of AppeaZ" Efqh.fh O£rCUit. February 15, 1891.)
'Before CALi>WELL,Circuit Judge, and JUdges.
In Error to the United States Court in the Indian Territory. Olifford L.Jackson, for plaintiffs in error. e. B. Denl80n and N.B. 'Maxey, for defendant in error. SHlliAS
and
THAYER.
District
C.ALbWELL, Circuit J.tldge. This action was commenced bytbe plaintiff below to damages for the alleged negligent killing of his cattle by defendants below·whileopel'ating the Missouri, Kansas & Texas Railway. as
-EI>DY
f1; -WALLA<lE.
-
801
receivers. The plaintiff recovered .judgment. andtbedefendants sued out this writ of error. Upon the trial the court gave the same instruction to the jury that was given in the case of thelle same plaintiffs in error against Lafayette, 49 Fed. Rep. 798. (dgcided at this term.} This was error. - The of the court below is reversed; and the caae remanded. With instrue-' tiona to grant a Dew trial. .
EDDY' 'ei'
al.
11.
W
(Oircuit Ooort of Appeall, Eighth 0IirCUit. FebrUary U,l899.)
1.
Plaintift took passage on defendants' freight train, which, when it reached his .tation, halted in sucli a position that the caboose in which he was riding wasqllite a distance from the station. He had alighted, or was in the act of alighting,when the .brakeman told him not to get oif, for, after the freight was unloaded, the would be moved so as to bring the caboose near the platform. The train, instead of slowing up as the caboose neared the platform, incre&l!ed its speed, and plaintiif, '. acting under the advice of the brakeman, jumped oif, and was injnred. Held, that defendants were estopped by the act of their servant from claiming that plaintiff was in fault in not leaving the tfain when it first stopped, or that its contract of carriage was fUlly performed at such time; that defendants could not avail themselves of their custom as to the stoppage of freight trains, nor of the rule'that passengers on freight trains 88sumeincreaaed risks; and thatplaintiifwas entitled to recover if, in jumping off the train, he acted as a prudent man would have acted in thecireumstaricell. . Contributory negligence is a dllfense which.will not avalldefendants, unless susbya preponderance of the evidence. In an action for personal injuries caused by defendants' negligence, where it ap.. pears that plaintiif has not fully gained the use of the injured member, damages may be given for future loss. . . ' NEGLIGBNCE.
CARRIERB-INlUBY TO PASSBNGERS-MOVING TRAIN.
I.
8.BAME"'-DAltlGBa..
Error to the United States Court in the Indian Territory. Action by William J. Wallace against George A. Eddy and H. C. Cross, flsreceivers of Missouri, Kansas & Texas Railway, for personal injuries. Verdict and judgment for plaintiff. Defendants bring error. Affirmed. Clifford L. Jackson, for plaintiffs'in error. W. L. Hutchings and Sandels cfc Hill,for defendant in error. Before CALDWELL, Circuit Judge, and SHrnAS and- THAYER, District JUdges. SHIRAS, District Judge. The plaintiffs in error are the receivers having charge of the Missouri, Kansas & Texas Railway, and operating the trains thereon, under the orders of the United States circuit court for the district or Kansas. The defendant in error, on the 7th day of May, 1890, became a passenger on a freight train operated by the receivers, for the purpose of going from Kiowa to Stringtown station, in the India.n Territory. The train contained many cars, and, when it reached the station last named, it was halted in such a position that the caboose in which the defendant in error was seated was quite a distance ftom the v.49F.no.l0-51