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GILA VALLEY, GLOBE, & NORTHERN | negligent killing of her son, which judgment RAILWAY COMPANY, Plff. in Err.,
Trial-question for jury-negligence.
was affirmed by the supreme court of the territory, and the company brings the case here.
The deceased was a brakeman and had 1. Evidence tending to show that a spur been employed by the defendant company railroad track was not a safe and proper as such for a few weeks before the accident structure for the operation of cars is suffi- occurred in which he lost his life. He actcient to carry to the jury, on the questioned as one of the brakemen upon the freight of the negligence of the railway company, train, which was pushed up on an action to recover for the killing of a track that ran from the main line in the a spur brakeman while riding on a car which town of Globe, in the territory, to a mining plunged over the end of the spur track, al- station, about 500 yards away. The accithough the evidence for the railway company tended to show that the accident was dent, which resulted in the death of the due to the negligence of a fellow servant in deceased, occurred on this spur track on ordering the car to be detached from the the 14th of July, 1900. the 14th of July, 1900. The grade of the train and engine.* spur, after leaving the main line, was, for a short distance, level. It then became quite steep upgrade, getting steeper and steeper, until it again became level, under what is termed the tramway house. This was a structure erected over the tracks, and the bottom of it was only 2 feet above the top of the freight cars, and from that tramway structure to the end of the road the grade was about level, and the distance a little over a hundred feet. The track ended on a trestle, with a buffer at the end, which was not calculated to resist a car pushed by an engine, but only to stop one pushed by hand or by the wind. The trestle ended at the side of a cañon, and there was at that point an abrupt fall to the bottom of the cañon of 75 feet. There was bottom of the cañon of 75 feet. There was a curve on the spur track, which would prevent the engineer from seeing the end of his train, and he would have to obtain signals from others in order to run his engine. The upgrade was so steep that only a few cars could be taken up from the main track at any one time.
2. Charging the jury that, unless an accident to a railway brakeman was caused solely by the negligence of the conductor, the defendant railway company was liable, even if erroneous in that "sole cause" is not synonymous with "proximate cause," does not prejudice the defendant, where further instructions, given at its request, were to the effect that, if the conductor's negligence was the proximate cause of the accident, there could be no recovery, and the court's attention was not specifically drawn to the objection to the word "sole."+ Trial-reception of evidence-expert testi
3. The discretion of the trial court is not abused by permitting witnesses who have had practical railroad experience and are familiar with overhead structures and buffers to testify as to whether a buffer at the end of a spur track was a reasonably safe and proper one, and as to whether reasonable and proper care had been exercised in so building an overhead structure as to prevent the use of the hand brakes on a freight car until about 100 feet from the end of the spur track.‡
On the occasion of the accident the train started from the main line, and was pushed up grade by the engine in the rear. The deSubmitted November 13, 1906. Decided ceased was on top of the front car of the
December 10, 1906.
train, being farthest away from the engine at the time the train was being pushed up.
IN ERROR to the Supreme Court of the The conductor was on the car next to that
Territory of Arizona to review a judgment which affirmed, on a second appeal, a judgment of the District Court of Gila County, in that territory, in favor of plaintiff in an action to recover damages for the alleged negligent killing of a railway employee. Affirmed.
of the deceased, and by his orders the engineer shoved the train as rapidly as he could, and ran it at the rate of 5 or 6 miles an hour, and then after a shove the two cars on which were the deceased and the conductor were detached from the train and passed along at that rate of speed under the
See same case below (Ariz.) 80 Pac. 337; tramway house and on to the level portion on first appeal, 71 Pac. 957.
Statement by Mr. Justice Peckham: The defendant in error, who was plaintiff below, recovered a judgment against the railroad company, plaintiff in error, in a trial court in Arizona territory, for the
of the road, which ended in about a hundred feet at the side of the cañon. The deceased was unable to control the speed of the cars with his brakes, and the car on which he was riding passed along and knocked away the buffer and plunged down to the bottom of the cañon. Eye witnesses
*Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1021. †Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 705, 718.
Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2350, 2351.
27 S. C.-10.
of the accident immediately descended of negligence by failing to provide a reasonthe side of the cañon and found at the bot-ably safe place for the servants of the comtom the car and the dead body of the de- pany to work in; that the cause of the acceased. cident was the gross negligence of the conductor in ordering the cars to be detached from the train and engine, and that such negligence was that of a fellow servant of the deceased, and did not form the basis for a recovery against the defendant. of opinion that, taking the whole evidence, enough was proved on the part of the plaintiff below to make it proper to send the case to the jury on the question of the negligence of the company.
There was evidence tending to show that the spur track was not a safe and proper structure to operate over its length with cars, for the reason that the tramway house was so close to the top of the cars when passing under it that the brakes could not be handled, and there was not sufficient length of road after the train passed under the house during which to get the cars under control and stop them before they arrived at the end of the track and the side of the cañon. The only way in which it ought ever to have been done was to have the engine at all times attached to the train, and even then, if anything got out of order with the engine, the train was not under control of the brakeman, on account of the tramway house. The buffer at the end of the track was also asserted to be insufficient, and witnesses were called who testified that the track was not a reasonably safe one upon which to conduct the business of the road.
The company, on its part, gave evidence tending to show that the track was properly constructed; that the buffer was the buffer was sufficient for the purpose intended, and that the whole structure was a reasonably safe place, and that the accident was caused simply by the flagrant negligence of the conductor, in ordering the two cars to be detached from the train, and thus taken away from the control of the engine. It also gave evidence that the buffer was not to be used at the end of the track to stop cars in motion, nor were the hand brakes intended to be so used at that spot, as it was intended that the engine should control the cars and should not be there detached from them. They therefore insist that, when the operation was properly performed, the matters of the low shed, short track, and insufficient buffer were immaterial. It was all predicated upon the fact that the cars should be under the control of the engine, and should not be detached therefrom, as these cars were, under the orders of the conductor.
The next question arises in regard to the charge of the court upon the proximate cause of the accident, whether it was the negligence of the defendant company in not furnishing a proper and reasonably safe place for its employees to work, or that it was the negligence of the conductor (a fellow servant of the deceased) in ordering the cars detached from the engine. The court charged that
"The conductor of the train was a fellow servant of the man who was killed, and if the accident was brought about solely by the negligence of the conductor of the train, then the defendant company is not liable; or if the accident was brought about by the negligence of the conductor and the negligence of the man who was killed, the defendant company is not liable. If, however, the accident was caused by a failure of the defendant company to provide a reasonably safe place to perform the work in which the man who was killed was engaged, then the defendant company is liable in damages for the death, if it was negligent in not providing such safe place.
"The fundamental question, therefore, for you to determine in this case is, What was the cause of this accident; what brought it about?
"If you find that this accident was caused solely by the action of the conductor in the method which he employed in putting cars on the spur at the time in question, then you should find a verdict for the defendant company, and you should not award any
Mr. Frank W. Burnett for plaintiff in damages to the plaintiff in this case; or if
Mr. Waters Davis for defendant in error.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion
of the court:
you should find that the dead man has, through his own negligence, brought about this accident or contributed to it, then you should find for the defendant, and you should not award any damages in this case.
"On the other hand, if you find that the The first question presented by the plain- defendant company was negligent in not tiff in error is founded upon an exception providing a reasonably safe place for the to the refusal of the court to instruct the performance of the work, you should find jury to render a verdict for the plaintiff in for the plaintiff and award her damages, error, on the ground that there was no evi- provided that the negligence of the defenddence that the railroad company was guilty | ant in not providing such a safe place was
the cause of the accident, or contributed to, if it was the proximate cause, the company the accident.
"To find for the plaintiff, it is not enough that you should find that the premises were unsafe, or that the defendant company was negligent in that respect, in not providing a safe place; you must also find that the place was unsafe, and that the accident was brought about or contributed to by reason of that unsafe place. That is, if you should find that the act of the conductor was the sole, or if you should find that it was the proximate, or the procuring, cause of the accident, then you should not award damages; but if you find that the accident was caused by the acts of the conductor and also by the negligence of the defendant company in not providing a safe place to do the work, then you should find damages for the plaintiff. In other words, in order to award damages to the plaintiff, you must find, first, that the defendant company was negligent in not providing a safe place to do the work, and that such negligence was the cause of the accident or contributed thereto. If you find the accident was brought about solely by the acts of the conductor, you should not award damages. If the acts of the conductor alone did not cause the accident, but the accident was contributed to by the negligence of the defendant company by not providing a safe place to work, then you should award damages."
"Was the place where the deceased was working a reasonably safe place for the performance of the work to be done there,-a reasonably safe place, considering the character of the work to be done and the character of the premises?
"If you find it was not reasonably safe, and the defendant company was negligent in that respect, did that fact have anything to do with the accident, or was it caused by the negligence of the conductor of the train alone?
"If it was caused solely or procured or brought about by the negligence of the conductor, then the defendant is not liable. If the negligence of the defendant company contributed to the accident, then the defendant is liable, provided the dead man himself was not guilty of any negligence which contributed to the accident."
The company now finds fault with this charge, on the ground that it was error to charge that unless the accident was caused solely by the action of the conductor, the defendant was liable; that "sole" cause is not synonymous with "proximate" cause, as the action of the conductor may not have been the sole, although at the same time it may have been the "proximate," cause, and
would not be liable. The rule would seem
We think the defendant received no prejudice from the charge as given, taken in connection with the defendant's requests to charge, which were complied with. If the defendant had desired to obtain a more specific charge in relation to the distinction between "sole" and "proximate" cause of the accident, as applied to the negligence of the conductor, the court should have had its attention specifically drawn to the objection to the word "sole," and the particular freedom from liability asserted if the negli gence of the conductor were the proximate
cause of the accident, as distinguished from | bility of their opinions under these circumthe sole cause. A general exception to the stances, and we ought not to interfere with charge as given would not raise the ques- the decision of the trial court in this case. tion. Congress & E. Spring Co. v. Edgar, 99 Congress & E. Spring Co. v. Edgar, supra; U. S. 645, 659, 25 L. ed. 487, 491. The re- Chateaugay Ore & Iron Co. v. Blake, 144 quests to charge as given show the jury U. S. 476, 484, 36 L. ed. 510, 512, 12 Sup. Ct. had its attention drawn to the proximate Rep. 731. cause, and that if the conductor's negligence were the proximate cause, the plaintiff could not recover.
A third question arises upon the admission of evidence. Certain of the witnesses for plaintiff were called to prove that, in their opinion, the company had not furnished a reasonably safe place for its employees to work in. This was objected to on the ground that the witnesses testifying to it were not properly experts and should not be permitted to testify. One witness, who testified that the buffer was not a reasonably safe and proper one, said that he had been railroading for fifteen years, following the business of trackman during that time; that it was his business to go over the track and see if it was in proper shape, and that he had had something to do with the construction of a railroad; that he
familiar with the construction of tracks, trestles, and buffers; that that was what he had had to do; that overhead structures came under another department; that he considered it unsafe for the reason
that the buffer would afford an obstruction
There is no error in the record and the judgment is affirmed.
UNITED STATES ex rel. REBECCA J.
WILLIAM H. TAFT, Secretary of War. Error to District of Columbia court of appeals-question respecting Federal authority.
The validity of an authority exercised under the United States was not drawn in question so as to sustain the appellate jurisdiction of the Supreme Court of the United States over the court of apD. C. Code, § 233, by a petition for manpeals of the District of Columbia, under damus to compel the restoration to her position in the classified civil service of a clerk whose contention is not that the President and his representatives were without authority to dismiss her, but that her dismissal was illegal because the requisite formalities prescribed by the civil service regulations were not observed.*
cember 10, 1906.
N ERROR to the Court of Appeals of the
District of Columbia to review a judg ment which affirmed a judgment of the Supreme Court of the District, denying a writ of mandamus to compel the restoration of a clerk to her former position in the classified civil service. Dismissed for want of jurisdiction.
to the wheels and that the car would slide off the trucks and go over into the ravine. Another witness said that he had been Submitted November 19, 1906. Decided Deworking on railroads for twenty years, and that from his experience he had had occasion to become acquainted with structures over tracks, over bridges and highways, and buffers at the end of chutes and tracks, and as to the control of the cars, their operation and the operation of the brakes on the cars, the stopping cars, the resisting power of buffers, etc. He said that, in his opinion, the tramway house was too close to the top of a car, and that it was an impediment to the operation of the hand brake of the car, and that the buffer at the end was not an effective obstruction. Evidence was given by other witnesses, by depositions, in regard to the structure over the railroad track and the character of the buffer.
See same case below, 24 App. D. C. 95.
Statement by Mr. Chief Justice Fuller: Relator was, on May 12, 1902, a clerk in the classified civil service of the United States, and employed in the War Department. On that day an article purporting to be signed by her, and making very serious reflections on the President of the United
In the cases of all the witnesses, we think the question of the admissibility of their evidence was one within the reasonable dis-States, appeared in a newspaper published cretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures and the character of buffers mentioned in the evidence. There was certainly enough to call upon the court to decide upon the admissi
at Washington. Some days thereafter the Secretary of War directed that relator be called upon to state whether she was the author of the publication, and, if so, it was ordered that her attention should be invited to § 8 of civil service rule II., and that she be allowed three days in which to sub
*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1038.
mit any answer or statement she might | App. D. C. 95), and this writ of error then wish to make. sued out.
To this relator answered, admitting that she was the author of the article, but insisting that she had not been notified of any charge calling for answer under the rule.
Thereupon the Secretary entered an order dismissing her from the service, and filed a memorandum assigning as reason therefor the publication of the article.
Mr. Noble E. Dawson for plaintiff in er
Solicitor General Hoyt for defendant in
Mr. Chief Justice Fuller delivered the
opinion of the court:
This case comes before us on a motion
to dismiss the writ of error for want of jurisdiction. The right to such a writ is given in § 233 of the Code of the District of Columbia (31 Stat. at L. 1189, 1227, chap. 854), which reads:
of error or appeal, in all cases in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regu. lations as existed in cases of writs of error on judgments, or appeals from decrees rendered in the supreme court of the District of Columbia, on February ninth, eighteen hundred and ninety-three, and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or intreaty or statute of, or an authority exerwhich is drawn in question the validity of a cised under, the United States."
Relator then filed her petition for mandamus in the supreme court of the District, to compel the Secretary to restore her. The petition recited §§ 3 and 8 of civil service rule II., and assigned as grounds of relief that the procedure was not in conformity "Any final judgment or decree of the with the executive regulations set out, in court of appeals may be re-examined and that no reasons for removal had been fur- affirmed, reversed, or modified by the Sunished relator, and also in that the real rea-preme Court of the United States, upon writ son of her removal was because of her political opinions and the expression of them. The Secretary answered the petition, setting out the facts in detail, denying that relator was removed on account of her political opinions, and averring that the action was taken because of the publication of the article, containing derogatory and disrespectful statements of and concerning the President of the United States in relation to his conduct as Commander in Chief, and which he decided "was prejudicial to order and the efficiency of said War Department, and such offense as rendered the further connection of the petitioner with said service incompatible with the best interests of the same." And while insisting that all acts done or caused to be done by him were in conformity with the civil service rules, The relator did not, however, question the the Secretary submitted that the petitioner authority of the President or his representshowed by her petition "no vested right, ti-atives to dismiss her, if the required fortle or interest in or to the employment formerly exercised by her in the office of the Adjutant General of the United States Army, and that the relation of such petitioner, as an employee, to the executive civil service, in respect of appointment, promotion, and removal, is a matter wholly within the competence and cognizance of the political department, and the action of the head of an
executive department in respect thereof is not subject to be reviewed, reversed, set aside, or controlled by a court of law, nor can his action in that behalf be commanded, directed, or compelled by the writ of mandamus, as the petitioner in her said petition has prayed."
Relator filed a demurrer to the answer, which was overruled, whereupon she elected to stand by the demurrer, and judgment was entered denying the writ. The judgment was affirmed by the court of appeals (24
If this writ of error can be maintained,
it is on the ground that the validity of an authority exercised under the United States was drawn in question.
malities had been complied with. What she claimed was that there were certain rules and regulations of the civil service which were not observed in the matter of her dismissal, and that, therefore, such dismissal was illegal.
But this contention did not draw in question the validity of an authority exercised under the United States, but the construction and application of regulations of the exercise of such authority.
lina v. Seymour (United States ex rel. South As Mr. Justice Gray said, in South CaroCarolina v. Seymour) 153 U. S. 353, 38 L. ed. 742, 14 Sup. Ct. Rep. 871, referring to an identical provision of the laws of the District prior to the Code: "In order to come within this clause, the validity, and not the construction only, of a treaty or statute of the United States, or of an authority exercised under the United States must be directly drawn in question."