(CIrCuIt 09w:t of Appeals,. Tl!.ll"dClrcu1t. May 21, 1894.)
'Al'I'D STRlIlIllT. lUILROADS-
. in a,n, against a street-car COlnp;my for injury caused by a c<>ijfslon, de'ten!1ant asks an ins'tructlon to the effect that, If plaintiff stOiltred his horse near the car, ana the car theIi started with the horse inli:poslLion of safety, and the horseoecame unmanageable from having bElen'll(lll.red by the ri,nging of t;P.egong, and,jumped in front ,of the car before it could be.stopped, this would not be negligence, it is proper to modify the, In.\ltructi0ll: by adding that if the hprse was in a state of alarm, and the gong 'was rung "'VIolently, and so to the horse as to .produce greater alarm, and caUSe the accident, th8.t:m1ght be negligence.
InEmr to the" Circuit Court dfthe United States for the East· ern of ', ' A<;tion by JohnA. Ligl?-tcap against the Traction Gompapy forpersbnal injuries. Plaintiff obtained judgment. Defenda,Jit'1?nngs error. ' Thoma.sLeaming, for in,error. S. Mo,rris WaIn llnd John W. Westcott, for defendant in error. Before AOHESON, Oircuit Judge, and BUTLER a,nd GREEN, District Judges. BUTLER, District Judge. The plaintiff belo'w, Lightcap, sued forinjlldes sustained by a collisiQnwith the defendant's cars, while its tracks on Market street. His statement avers that he wasdrivin,g, up Eleventh street, on March 24, 1893, and that on reaching Market street, and seeing it was ''blocked with wagons, he stQppedon the side until he4;\ould get an oppor,tunity to cross; that wb.en he saw he could croli!lS ill safety, and was ordered by a policeman to proceed, he drov;e on, and, when. he reached the railroad tracks he was struck by a car carelessly and negligently operated by the servants of the, company; that the car had stopped, or was in the act of stopping, abqut twenty feet from the point where he wascrOlijling, when, althQugh the serva,nts of the company saw ,him croli!Sing, they cl4'elessly, negligently, and suddenly started the car'in motion, causing it to crash into his wagon, throwing him out with great violencet and seriously injuring him. This the cause of action which the plaintiff sought to establish, .and which his testimony (tho'llgh contradicted by the defendant's) tended to After the evidence had closed, the defendant injected another issue, by presenting the following point:
"(5) If the jury beUeve that the plaintiff stopped when both vehicles were very close: to' the inter,sElCt!on of the two trlfclrs, and that t1).e train proceeded with the plalntlt'l"s hprse in a position of safety, and that the horse then became unmllllageabl& :from having been: scared by the ringing of the gong or other canse,andjumped.ln front otthe Cllble train before it could be stopped, this: is notevl<l&IlCe' of negligence, and you,r verdict Sbould be for the defeJ;ldant.", ,,' . , ,.. 1." '"
The court answered as follows:
"I a.tlIrm that, with this qualifying suggestion, that if you tind from the evidence-and I leave that to you, without any intimation of my own about 1t-
PHILADELPHIA TRACTION CO.V. UGHTCAP.
that this horse was in a state of excitement and alarm, and the ringing of the bell was done violently and so near to it as to produce greater alarm and to bring about the accident, that mignt be negligence; Qut, as I remember the evidence, gentlemen, it was that the horse was then standing with his head a short distance from the track; that he was, as some of the witnesses say, trembling, and, as others. say, quiet and docile; 'fhe gripman, who says he was trembling, excited and scared, says that he pulled the bell, and I remember his motion distinctly, that way. [Indicating a moderate single , pull.] "Now, gentlemen, the facts are for you. I state my recollection of them only to aid you, not to control you. It is for you to say what the facts were. If from the facts there is any reason to say that in the act of ringing the bell, which ordinarily is a duty to give notice, there was any negligence, that is, in the manner, at the time, and under the circuinstances of the ringing. But with that explanation, and subject to that, I affirm this point."
To this answer the defendant excepted, and assigned it as error. .We are not called upon to determine whether the point might not properly have been rejected. Its affirmance without qualification would certainly have been error. It asked the court to say that if the horse "becaJ11e unmanageable from the ringing of the gong," under the circumstances stated, and thus caused the accident, "the verdict should be for the defendant." One of these circumstances, (on which the conclusion of the point is based,) is that the "horse was in a position of safety" at the time. The jury could not, how· ever, so find; the defendant's own evidence forbids it. He was standing within three or four yards of the where the car must pass, trembling with fright, as the gripman testifies. His position, when the car moved, and the gong sounded, could not, therefore, be found to be one of safety. It was clearly one of peril. And yet the court is asked to say that the jury may find other· wise, and predicate upon it instruction that the sounding of the gong was not carelessness-without any regard to the character of such sounding. This certainly would not have been justifiable. It was for the jury to determine whether, under all the circumstances existing at the time, the defendant observed proper care. These circumstances were: The terrified horse, standing close to the tracks, and near the car, which must pass immediately by his head, if moved; the starting of the car and sounding of the gongwhether moderately or immoderately (in view of the circumstances) as might be found. It was for the jury to consider whether it was proper to start the car before the plaintiff had gotten away; if it was, whether it was necessary to sound the gong at that moment; and if it was necessary, then whether it was sounded immoderately in view of the circumstances, either in loudness or duration. While it is a duty of railroad companies to give warning at the approach of crossings, the duty may be, and sometimes is, modified by circumstances. It was therefore the duty of the court in affirming the point to invite attention to the existing conditions, and leave the jury to determine whether the conduct of the defendant's servants was careless or not. This in substance is what was done. The word "violently," used in connection with the ringing, did the defendants no injustice. It was used in a comparative sense, with reference to the
'circumstanCes.' What would be moderate ringing under Bome circUplstancesmtghtbe immoderate;orrlolent under others. The charac.ter of the ringing upon this occasion, was,as before stated, for the jury to determine from the evidence. It was loud enough and continuous enough, according to the defendant's testimony, to increase the, p.orse's terror, render him ungovernable, and cause the accident. But even if the use of the term here would be objectionable in the absence of what the court subsequently said in closing its instructions on this subject, it is not so when read in that conJiection. The COlJrt there;'aaid:
'" "If from the facts there is reason to, !lay that In the act of ringing the bell, which ordinaWlY is a duty to give notice, there WaS any negligence, -that is, in the manner, and at the time, and under the circumstances, you maytl.nd negligence. With that explanation, and subject to that, I affirm this point."
The answerfwas as favorable as the defendant was entitled to: affirmed. ' The judgmetitls
OROOKS et al.
THE PUNBRITTON. KNUDSONet a1. v. SAME. SMAIL et a!. v. SAME. (DlstrlctOOui1:,!!l. D. New York. April 20, 1894.)
BJJIPPING-DAMiG1ll TO CAudo"":'STOWAGB-PLUMBAGO AND OIL-PERILS OF THE SEA-BURDlIlN!Q1l' PROOF;
The shiP Dunbrltton loaded certain barrels of plumbago at Ceylon, and stowed the.I\l the lower hold. l'ipes of oil were afterwards stowed in the betweendecks. The shil1ment ofo.il and plumbago in the same vessel Is customary. The shippers of cargo other than oil knew that all was to , betaken aboard. The deck upon which this oil was stowed was especially strong, tight, and secure; and the court found, as matter of fact, that the cargo was well stowed and dJ,IDnaged. Near Cape Horn'the ship exllerienced very bad weatb,er, and on one occasion shipped a heavy sea; and by l'eason of this heavy weather, and Without any fault of the ship, there was much from the oU. On arrival at New York, some of the plumbago and other ,goods were found to have been damaged by the oil, to reco\'Ell' for whic,h damage the shippers filed this libel. Held, that the damage having occurred by reason Qf perils of the sea, the burden of proof was upon the shippers to show some fault in the ship, in not protecting the goods against such and as, on the evld1!nce, the shippers had failed to show such fault by any preponderance of proof, they could not recover.
These were three libels against the ship Dunbritton,-the first, by R. Flemming Orooks and others; the second, by Morris F. Knud'eon and others;' and the third, by Henry Smail and others,-all to recover for damages, by leakage of oil, to plumbago and other goods, cargo of said ship. George A. Black, for libelants. Seward, Guthrie & Mor.a!Vetz, for claimant. BROWN, District Judge. The two libels first above named were tiled to recover ,for damages to plumbago; the last, for damage to
Reported byJl}. G. Benedict, Esq., of the New York bar.