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is left to take all the speculative chances of the future, with the certainty that the bargainor has completely deprived himself of the power to render his property valuable for productive purposes. It is only necessary to state such a casa, with adequate reflection on the grossly inequitable result, to force fair acknowledgment that such an interpretation is utterly unsound. Under this contract both parties took the chance that a railway connecting with the markets of the country would be constructed in the neighborhood of this property, and that when this was done the property would be diligently explored, and if found to justify mining operations, in view of the railroad thus built, whether five or ten miles from the property, or nearer, such mining operations were required to be commenced, and if diligent search for mineral deposits, with the proper test, disclosed that mining operations could not then be conducted profitably, it was an obligation on the part of the bargainee to abandon the enterprise under the contract, surrendering his rights under this agreement, and to notify the bargainor accordingly, and a clearly implied obligation or covenant required it to do this within a reasonable time, in all respects, where the time is not fixed by the written agreement.

In determining whether the property could be profitably developed and mining operations carried on, it was a part of the obligation and the concern of the bargainee to determine in that connection, and as a part of that question, whether such operations could be carried on by procuring or by building a lateral or branch railroad, or, failing in that, by wagon or animal transportation, from this property to the railroad thus completed. But it is clearly not a permissible construction of the contract to say that the bargainee may stand idle, and take no step whatever, and insist that it is not required to take any such step, until and when, if ever that shall happen, a railroad shall by chance be built upon, through, or on a line adjoining the property. What is thus said seems to indicate sufficiently the course of reasoning which I regard as applicable to this case, and by which it is apparent that I reach the conclusion that there has been here a forfeiture and abandonment of the rights conferred upon the bargainee by the agreement in question, by nonuser and by a total failure to comply with the clearly implied covenant requiring diligent exploration and operation on the part of the bargainee; and upon the authority of the cases before referred to I conclude that the bargainor is entitled to the relief sought, and it is so decreed.

This view seems to render it unnecessary that I should consider or decide other points raised in the pleadings and discussed in the arguments at bar.

SOL'TIERY RY. CO. v. SIMPSON.

(Circuit Court of Appeals, Sixth Circuit. June 22, 1904.)

No. 1,292.

1. FEDERAL COURTS-STATE STATUTES-CONSTRUCTION-STATE DECISIONS-CON

CLUSIVENESS.

The opinion of a state court of last resort, construing a state statute, is conclusive on the federal courts sitting in such state to the extent only

of the precise question decided. 2. RAILROADS-INJURIES AT CROSSINGS-STATUTES-CONSTRUCTION.

Shannon's Code, $8 1574-1576, requires every railroad company to keep some person on its locomotive always on the lookout ahead, and, when any person, animal, or other obstruction appears on the road, to sound the alarm whistle, put down brakes, and exercise every possible means to stop the train and prevent an accident, and renders a railroad company absolutely liable for an accident caused by a failure to comply therewith. Held, that such sections did not render the railroad company absolutely liable for a collision occurring in the daytime, while the engine was being operated backwards with the tender in front, and that the refusal of the court to charge that if the engineer was actually on the lookout ahead of his engine, and saw plaintiff's vehicle as soon as it could have been seen, as it approached and entered on the crossing, and the engineer immediately blew the alarm whistle, put down the brakes, and used every possible means to stop the train and prevent the accident, plaintiff could not

recover, though the engine was being operated backwards, was error. 3. STATUTORY OBLIGATION-PLEADING-AMENDMENT-DEPARTURE.

Where a declaration in an action for injuries at a railroad crossing alleged that defendant wrongfully and negligently ran its engine and cars against plaintiff, when crossing its track in a lawful and prudent manner, it stated a cause of action at common law and under Shannon's Code, $8 1574-1576, requiring every railroad company to maintain a lookout ahead on the locomotive, etc., and rendering the company absolutely liable for damages occasioned by failure to comply with the act, though such act was not referred to in the declaration; and hence the amendment thereof, by adding a count specially declaring liability under the statute, did not con

stitute a departure. 4. SAME-CONTRIBUTORY NEGLIGENCE.

In an action against a railroad company for injuries at a crossing, under Shannon's Code, $8 1574–1576, requiring every railroad company to keep some person on its locomotive on the lookout ahead, and certain other precautions, and rendering such company absolutely liable for injuries occasioned by a failure to comply with such sections, contributory negligence

is no defense. 5. SAME--EVIDENCE.

Where a railroad company was not required by Shannon's Code, $ 1574, to blow the whistle or ring the bell at a crossing at which plaintiff was injured, evidence tending to show a custom of the company, subsequent

to the collision, to blow the whistle at such crossing, was inadmissible. In Error to the Circuit Court of the United States for the Eastern District of Tennessee.

1. State laws as rules of decision in federal courts, see notes to Griffin v. Overman Wheel Co., 9 C. C. A. 518; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553. See Courts, vol. 13, Cent. Dig. $ 957.

131 F,-45

The following is the opinion of Clark, District Judge, in the court below, on motion for new trial:

It is not deemed necessary to go over the facts of this case in detail. It will be sufficient to say that I have no doubt, on the facts of this case, that the plaintiff was guilty in law of contributory negligence. The doctrine which exempts him from imputed negligence of the back driver is not to be understood as exonerating him from the consequences of his own personal negligence, and a man of full years and intelligent judgment is not permitted to get in the conveyance of another person, and approach and attempt to go over a dangerous crossing like this, without saying one word or doing one thing for the safety of himself. It is in his power either to suggest to the driver of the conveyance to stop, or to look, or to listen, or to take some other precaution reasonably suggested by the dangerous situation. If the driver should fail to do so, the passenger has the right to insist that the conveyance shall be stopped, and that the passenger be allowed to get out and discharge the duty of reasonable care for the protection of his own life, and it would be a startling announcement to say that the fact that imputed negligence is not recognized would, in its consequences, authorize a man to omit any precaucion whatever to take care of himself. The decisions of the state Supreme Court, as I read and understand them (though the point is not free from doubt), so construe the statute of the state as to render the railroad company absolutely liable for an accident which occurs while a train is being moved by an engine coupled to that train with the tender in front, or when the engine is running backward. The Supreme Court seems not to have thought or considered whether, indeed, in many cases, the duty required by the statute might not be better discharged in this way than by having the engine headed forward. It would be difficult to find any substantial reason on which to base such a decision, but nevertheless it seems to be the established rule of that court, and such ruling is binding on this court. This being so, the right to recover could not be questioned, and it was the duty of the jury to assess the damages. The damages allowed should have been reduced by the plaintiff's contributory negligence.

There was one weak point in respect of the evidence introduced by the plaintiff, and that was the omission to sustain the plaintiff's ow i testimony by the surgeon or physician who had previously had charge of his surgical difficulties. It is not satisfactory, in fixing a serious responsibility on the defendant, to do so on the unsupported testimony of the plaintiff himself, who is without medical education or training, and a very interested party, it is needless to say. There is no doubt that whatever is in the plaintiff's case is the mere aggravation of previously existing injuries, and it is very doubtful if he has really suffered anything new, as distinguished from the mere aggravation of old injuries. I would have been much better satisfied with a verdict of $2,000 to $2,500 in this case, and, as the jury should have reduced the amount by contributory negligence, I think the verdict is excessive, and that the jury did not make such reduction. Conceding to the jury, however, the latitude which properly belongs to their discretion, I have concluded that the verdict may stand for the sum of $3,500, and that the plaintiff must agree to remit $1,000 of the recovery, or otherwise the verdict will be set aside and a new trial awarded. If the plaintiff shall voluntarily remit $1,000 of the damages, the motion for a new trial will be overruled. The plaintiff is allowed 10 days within which to signify to the clerk the course intended to be taken in this regard. If there is error in my reading and understanding of the Tennessee cases in relation to the statute, this is readily subject to review by the Circuit Court of Appeals, and the question is one which it may be very desirable and of practical importance to have reviewed.

Ordered accordingly.
Jourolmon, Welcker & Hudson, for plaintiff in error.

X. Z. Hicks, D. A. Wood, and Lucky, Sanford & Fowler, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge. The plaintiff below sustained an injury by collision with a railway engine while crossing the railway track at a road crossing. Upon the conclusion of all the evidence the court instructed the jury to return a verdict for the plaintiff, and submitted to them the question of amount of damages only. This instruction was predicated upon an interpretation of a provision of the Tennessee Code requiring railroad companies to exercise certain precautions in the operation of their trains to prevent collision with persons or objects on the track. That requirement is in these words:

"Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."

“Every railroad company that fails to observe these precautions, or cause them to be observed by its agents and servants shall be responsible for all damages to persons or property occasioned by, or resulting from, any accident or collision that may occur."

"No railroad company that observes, or causes to be observed these precautions shall be responsible for any damage done to person or property on its road. The proof that it has observed said precautions shall be upon the company."

Shannon's Code Tenn. $S 1574-1576.

The engine at the time of the collision was being operated backwards, the tender being in front. The court denied a request by the railroad company to instruct the jury as follows:

"If the engineer was actually upon the lookout ahead of his engine, and saw the vehicle in which plaintiff was riding as soon as it could have been seen as it approached and entered upon the railroad crossing, and immediately blew the alarm whistle, put down the brakes, and used every possible means to stop the train and prevent the accident, then plaintiff cannot recover, notwithstanding the engine was at the time being operated backwards, because this would be a full compliance with the Tennessee statute.”

Touching the meaning of section 1571, Shannon's Code Tenn., set out above, District Judge Clark said to the jury:

“The statute does not, according to any just import of the language, require that the engine and tender shall be run headforemost, or that it shall not be run with the tender in front, as was being done in this case; and as an original proposition it is difficult to find any ground upon which to put an interpretation on the statute which would make it mean that it prohibits the railroad company from running its engine with the tender in front, if it chooses to do so, or that it requires any more than, if the engine is so run, that some one shall be kept on the lookout ahead, and be in a position to see ahead."

The learned judge, however, deemed himself precluded from the right to exercise an independent judgment as to the meaning of the statute, because he was under obligation to follow the interpretation of the statute by the Supreme Court of Tennessee in the case of Railroad v. Dies, 98 Tenn. 655, 41 S. W. 860, and accordingly instructed the jury that the running of an engine backwards was a violation of the statute, and the company liable for any collision, without regard to whether the "engineer was in a position to see, and did see, and did comply with all the requirements of the statute.”

Neither the case of Railroad v. Dies, nor any other Tennessee case, has ever involved the precise question presented by the instruction de

a

nied, or required the Tennessee court to decide that the statute was violated whenever an engine was run backwards, without regard to the circumstances. Confessedly the statute does not in terms require the engine to run either backwards or forwards. A literal compliance with the statute would not under all circumstances be a compliance with its requirements. Thus the statute prescribes, among other things, that some person upon the locomotive shall always be upon the lookout ahead; but if the locomotive be at the rear of the train, or in the middle thereof, the spirit of the statute would not be obeyed, although some person upon the locomotive so situated should be always upon the lookout ahead. In such a situation the lookout upon the locomotive could not be upon the lookout ahead of the train, and the plain purpose of the statute would be evaded. Upon this consideration the Tennessee court held that the statute was not complied with by the operation of a train through the streets of a city by an engine in the rear. Railway Co. v. Wilson, 90 Tenn. 271, 16 S. W. 613, 13 L. R. A. 364, 25 Am. St. Rep. 693.

Neither does the statute in terms require an engine to be equipped with a headlight. But the effectiveness of a lookout would be practically destroyed by the neglect of a company to employ the ordinary means employed by railroad companies to make a lookout effective, and upon this consideration the Tennessee court construed the statute as having been violated by the operation of an engine upon a dark night without a headlight. Railroad v. Smith, 6 Heisk. 174. But this construction of the statute, by which it was read as requiring a locomotive to be equipped with a headlight when running at night, would not justify the requirement of a headlight when running in the daytime; for such an equipment would not add to the effectiveness of the lookout, and cannot by implication be added to the requirement of the statute under such conditions. In pursuance of the same considerations in respect of the implied requirement to make the lookout upon the locomotive effective as a lookout ahead, the Tennessee court in Railroad v. Dies, 98 Tenn. 655, 41 S. W. 860, held the statute had not been complied with by running a road engine backwards, without a headlight on the tender, through and across the streets of a city, at night. In the case last cited the effectiveness of the lookout upon the engine being run backwards was destroyed by the existence of conditions not found in the case now before us.

Under the facts of the Dies Case compliance with the statute in respect to a lookout ahead was impossible, and, as stated by Justice Wilkes, the railway company could not "absolve itself from all duty to comply with the requirements, because, forsooth, they had made it impossible to do so." But in the case under consideration the locomotive was being operated in davlight, and the absence of a headlight, which was the pregnant circumstance destroying the effectiveness of the lookout in the Dies Case, can cut no figure whatever. There was evidence in the case on hearing tending to show that the effectiveness of the lookout was not in fact impeded or lessened by the fact of the backward operation of the locomotive, and the request for an instruction submitted to the jury the question as to whether the lookout actually “saw the vehicle in which the plaintiff was riding as soon as it

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