a

GILA VALLEY, GLOBE, & NORTHERN negligent killing of her son, which judgment RAILWAY COMPANY, Piff. in Err., was affirmed by the supreme court of the

territory, and the company brings the case A. J. LYON.

here.

The deceased was brakeman and had Trial-question for jury-negligence. 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 question ed as one of the brakemen upon the freight

. of the negligence of the railway company, train, which was pushed up on a spur an action to recover for the killing of a track that ran from the main line in the brakeman while riding on 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 com

dent, which resulted in the death of the pany tended to show that the accident was 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 grade of the train and engine. *

spur, after leaving the main line, was, for Appeal--prejudicial error-instructions. a short distance, level. It then became

2. Charging the jury that, unless an ac- quite steep upgrade, getting steeper and cident to a railway brakeman was caused steeper, until it again became level, under solely by the negligence of the conductor, what is termed the tramway house. This the defendant railway company was liable, was a structure erected over the tracks, and even if erroneous in that "sole cause” is not

the bottom of it was only 2 feet above the synonymous with "proximate cause," does not prejudice the defendant, where further top of the freight cars, and from that instructions, given at its request, were to tramway structure to the end of the road the effect that, if the conductor's negligence the grade was about level, and the diswas the proximate cause of the accident, tance a little over a hundred feet. The there could be no recovery, and the court's track ended on a trestle, with a buffer at attention was not specifically drawn to the the end, which was not calculated to resist objection to the word "sole." +

a car pushed by an engine, but only to Trial reception of evidence-expert testi- stop one pushed by hand or by the wind. mony.

The trestle ended at the side of a cañon, and 3. The discretion of the trial court is there was at that point an abrupt fall to the not abused by permitting witnesses who

. have had practical railroad experience and bottom of the cañon of 75 feet. There was are familiar with overhead structures and a curve on the spur track, which would buffers to testify as to whether a buffer at prevent the engineer from seeing the end the end of a spur track was a reasonably of his train, and he would have to obtain safe and proper one, and as to whether rea- signals from others in order to run his ensonable and proper care had been exercised gine. The upgrade was so steep that only in so building an overhead structure as to a few cars could be taken up from the main prevent the use of the hand brakes on a track at any one time. freight car until about 100 feet from the end

On the occasion of the accident the train of the spur track.

started from the main line, and was pushed [No. 96.]

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.

of on

Territory of Arizona to review a judg- of the deceased, and by his orders the enment which affirmed, on a second appeal, gineer shoved the train as rapidly as he a judgment of the District Court of Gila could, and ran it at the rate of 5 or 6 miles County, in that territory, in favor of plain an hour, and then after a shove the two tiff in an action to recover damages for the cars on which were the deceased and the alleged negligent killing of a railway em-conductor were detached from the train and ployee. Affirmed.

passed along at that rate of spced under the See same case below (Ariz.) 80 Pac. 337; tramway house and on to the level portion on first appeal, 71 Pac. 957.

of the road, which ended in about a hun

dred feet at the side of the cañon. The de. Statement by Mr. Justice Peckham: ceased was unable to control the speed of

The defendant in error, who was plaintiff the cars with his brakes, and the car on below, recovered a judgment against the which he was riding passed along and railroad company, plaintiff in error, in a knocked away the busfer and plungei down trial court in Arizona territory, for the to the bottom of the cañon. Eye witnesses

of the accident immediately descended, of negligence by failing to provide a reason. the 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 gros's negligence of the conThere was evidence tending to show that ductor in ordering the cars to be detached the spur track was not a safe and proper from the train and engine, and that such structure to operate over its length with negligence was that of a fellow servant of cars, for the reason that the tramway house the deceased, and did not form the basis for was so close to the top of the cars when a recovery against the defendant. We are passing under it that the brakes could not of opinion that, taking the whole evidence, be handled, and there was not sufficient enough was proved on the part of the plainlength of road after the train passed under tiff below to make it proper to send the case the house during which to get the cars un to the jury on the question of the negligence der control and stop them before they ar of the company. rived at the end of the track and the side The next question arises in regard to the of the cañon. The only way in which it charge of the court upon the proximate ought ever to have been done was to have cause of the accident, whether it was the the engine at all times attached to the train, negligence of the defendant company in not and even then, if anything got out of order furnishing a proper and reasonably safe with the engine, the train was not under place for its employees to work, or that it control of the brakeman, on account of the was the negligence of the conductor (a feltramway house. The buffer at the end of low servant of the deceased) in ordering the the traok was also asserted to be insufficient, cars detached from the engine. The court and witnesses were called who testified that charged that, the track was not a reasonably safe one upon "The conductor of the train was a fellow which to conduct the business of the road. servant of the man who was killed, and if

The company, on its part, gave evidence the accident was brought about solely by tending to show that the track was properly the negligence of the conductor of the train, constructed; that the buffer was suffi. then the defendant company is not liable; cient for the purpose intended, and that the or if the accident was brought about by the whole structure was a reasonably safe place, negligence of the conductor and the negliand that the accident was caused simply gence of the man who was killed, the deby the flagrant negligence of the conductor, fendant company is not liable. If, however, in ordering the two cars to be detached from the accident was caused by a failure of the the train, and thus taken away from the defendant company to provide a reasonably control of the engine. It also gave evidence safe place to perform the work in which that the buffer was not to be used at the the man who was killed was engaged, then end of the track to stop cars in motion, nor the defendant company is liable in damages were the hand brakes intended to be so for the death, if it was negligent in not used at that spot, as it was intended that providing such safe place. the engine should control the cars and

“The fundamental question, therefore, for should not be there detached from them. you to determine in this case is, What was They therefore insist that, when the opera- the cause of this accident; what brought it tion was properly performed, the matters of about? the low shed, short track, and insufficient

“If you find that this accident was caused buffer were immaterial. It was all predicat- solely by the action of the conductor in the ed upon the fact that the cars should be un method which he employed in putting cars der the control of the engine, and should not on the spur at the time in question, then be detached therefrom, as these cars were, you should find a verdict for the defendant under the orders of the conductor.

company, and you should not award any Mr. Frank W. Burnett for plaintiff in damages to the plaintiff in this case; or if

you should find that the dead man has, error. Mr. Waters Davis for defendant in error.

through his own negligence, brought about

this accident or contributed to it, then you Mr. Justice Peckham, after making the should find for the defendant, and you foregoing statement, delivered the opinion should not award any damages in this case. of the court:

"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.

would not be liable. The rule would seem “To find for the plaintiff, it is not enough to be that if the negligence of the company that you should find that the premises were had a share in causing the injury to the unsafe, or that the defendant company was deceased, the company was liable, notwithnegligent in that respect, in not providing standing the negligence of a fellow servant a safe place; you must also find that the contributed to the happening of the acciplace was unsafe, and that the accident was dent. Grand Trunk R. Co. v. Cummings, 106 brought about or contributed to by reason U. S. 700, 27 L. ed. 266, 1 Sup. Ct. Rep. 493; of that unsafe place. That is, if you should Ellis v. New York, L. E. & W. R. Co. 95 find that the act of the conductor was the N. Y. 546, 552. But, in addition to the main sole, or if you should find that it was the charge above set forth, the court charged proximate, or the procuring, cause of the the jury at the request of the counsel for accident, then you should not award dam- defendant as follows: that if the manner ages; but if you find that the accident was of throwing the cars, as testified to, were caused by the acts of the conductor and also unsafe, and the conductor caused the cars by the negligence of the defendant company to be so thrown by that unsafe method, and in not providing a safe place to do the work, if such act of the conductor was the proxithen you should find damages for the plain- mate cause of the accident, and that such tiff. In other words, in order to award dam- unsafe method was adopted by the conages to the plaintiff, you must find, first, ductor without the authority or direction of that the defendant company was negligent the defendant, the plaintiff cannot recover; in not providing a safe place to do the work, that if the jury believed that the accident and that such 'negligence was the cause of to the deceased was proximately caused by the accident or contributed thereto. If you the negligence of the conductor, it was imfind the accident was brought about solely material whether the deceased had had preby the acts of the conductor, you should vious experience as a brakeman, or not; not award damages. If the acts of the con- that, although the jury might believe from ductor alone did not cause the accident, but the evidence that other, better, and safer the accident was contributed to by the neg appliances might have been used by the deligence of the defendant company by not fendant company, yet the defendant was providing a safe place to work, then you not thereby rendered liable in this action, should award damages.'

if the proximate cause of the accident was Again:

the negligence of the conductor in the man"Was the place where the deceased was ner in which he conducted the work on the working a reasonably safe place for the per occasion in question; that, as the conductor formance of the work to be done there,-a was the fellow servant of the deceased, the reasonably safe place, considering the char- defendant could not be held liable if the acacter of the work to be done and the charac- cident was proximately caused by negliter of the premises ?

gence on the part of the conductor; that if “If you find it was not reasonably safe, the jury believed, from the evidence, that and the defendant company was negligent the appliances furnished by the defendant in that respect, did that fact have anything company were defective, yet if they further to do with the accident, or was it caused by believed, from the evidence, that the conthe negligence of the conductor of the train ductor was negligent in the manner in which alone ?

he conducted the work on the occasion, and "If it was caused solely or procured or that such negligence was the proximate brought about by the negligence of the con- cause of the accident, without which such ductor, then the defendant is not liable. If accident would not have happened, then the the negligence of the defendant company jury should find for the defendant. contributed to the accident, then the defend- We think the defendant received no prejuant is liable, provided the dead man him- dice from the charge as given, taken in conself was not guilty of any negligence which nection with the defendant's requests to contributed to the accident."

charge, which were complied with. If the The company now finds fault with this defendant had desired to obtain a more specharge, on the ground that it was error to cific charge in relation to the distinction becharge that unless the accident was caused tween “sole” and “proximate” cause of the solely by the action of the conductor, the accident, as applied to the negligence of the defendant was liable; that “sole” cause is conductor, the court should have had its atnot synonymous with "proximate” cause, as tention specifically drawn to the objection the action of the conductor may not have to the word "sole," and the particular freebeen the sole, although at the same time it dom from liability asserted if the neglimay have been the “proximate,” cause, and gence of the conductor were the proximate

V.

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 There is no error in the record and the were the proximate cause, the plaintiff could judgment is affirmed. not recover.

A third question arises upon the admission of evidence. Certain of the witnesses for plaintiff were called to prove that, in UNITED STATES ex rel. REBECCA J. their opinion, the company had not fur

TAYLOR, Plff. in Err., nished a reasonably safe place for its em

WILLIAM H. TAFT, Secretary of War. ployees to work in. This was objected to on the ground that the witnesses testifying Error to District of Columbia court of apto it were not properly experts and should

peals-question respecting Federal aunot be permitted to testify. One witness, thority. who testified that the buffer was not a rea

The validity of an authority exersonably safe and proper one, said that he cised under the United States was not had been railroading for fifteen years, fol-drawn in question so as to sustain the aplowing the business of trackman during that pellate jurisdiction of the Supreme Court

of the United States over the court of aptime; that it was his business to go over the track and see if it was in proper shape, D. C. Code, § 233, by a petition for man

peals of the District of Columbia, under and that he had had something to do with | damus to compel the restoration to her posithe construction of a railroad; that he tion in the classified civil service of a clerk

familiar with the construction of whose contention is not that the President tracks, trestles, and buffers; that that and his representatives were without auwas what he had had to do; that overhead thority to dismiss her, but that her disstructures came under another department; missal was illegal because the requisite forthat he considered it unsafe for the reason malities prescribed by the civil service regu. that the buffer would afford an obstruction lations were not observed.* to the wheels and that the car would slide

[No. 300.] 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

cember 10, 1906. that from his experience he had had occasion to become acquainted with structures IN ERROR to the Court of Appeals of the

District of Columbia to review a judgover tracks, over bridges and highways, and

a buffers at the end of chutes and tracks, and ment which affirmed a judgment of the Suas to the control of the cars, their operation preme Court of the District, denying a writ and the operation of the brakes on the cars, of mandamus to compel the restoration of the stopping cars, the resisting power of a clerk to her former position in the classibuffers, etc. He said that, in his opinion, fied civil service. Dismissed for want of juthe tramway house was too close to the top risdiction. of a car, and that it was an impediment to See same case below, 24 App. D. C. 95. the operation of the hand brake of the car, and that the buffer at the end was not an Statement by Mr. Chief Justice Fuller: effective obstruction. Evidence was given Relator was, on May 12, 1902, a clerk in by other witnesses, by depositions, in regard the classified civil service of the United to the structure over the railroad track and States, and employed in the War Departthe character of the buffer.

ment. On that day an article purporting to In the cases of all the witnesses, we think be signed by her, and making very serious the question of the admissibility of their reflections on the President of the United evidence was one within the reasonable dis- States, appeared in a newspaper published cretion of the trial court, and that the dis- at Washington. Some days thereafter the cretion was not abused. All the witnesses Secretary of War directed that relator be had had practical experience on railroads, called upon to state whether she was the and were familiar with structures and the author of the publication, and, if so, it was character of buffers mentioned in the evi- ordered that her attention should be indence. There was certainly enough to call vited to $ 8 of civil service rule II., and that upon the court to decide upon the admissi- / 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 in.

Mr. Noble E. Dawson for plaintiff in ersisting that she had not been notified of ror. any charge calling for answer under the Solicitor General Hoyt for defendant in rule.

error. Thereupon the Secretary entered an order dismissing her from the service, and

Mr. Chief Justice Fuller delivered the filed a memorandum assigning as reason opinion of the court: therefor the publication of the article.

This case comes before us on a motion Relator then filed her petition for manda- to dismiss the writ of error for want of mus in the supreme court of the District, to jurisdiction. The right to such a writ is compel the Secretary to restore her. The given in § 233 of the Code of the District of petition recited 88 3 and 8 of civil service Columbia (31 Stat. at L. 1189, 1227, chap. rule II., and assigned as grounds of relief 854), which reads: 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 po- of error or appeal, in all cases in which the litical opinions and the expression of them. matter in dispute, exclusive of costs, shall

The Secretary answered the petition, set- exceed the sum of five thousand dollars, in ting out the facts in detail, denying that the same manner and under the same regu. relator was removed on account of her po- lations as existed in cases of writs of error litical opinions, and averring that the action on judgments, or appeals from decrees renwas taken because of the publication of dered in the supreme court of the District the article, containing derogatory and disre- of Columbia, on February ninth, eighteen spectful statements of and concerning the hundred and ninety-three, and also in cases, President of the United States in relation without regard to the sum or value of the to his conduct as Commander in Chief, and matter in dispute, wherein is involved the which he decided “was prejudicial to order validity of any patent or copyright, or in. and the efficiency of said War Department, which is drawn in question the validity of a and such offense as rendered the further treaty or statute of, or an authority exerand such offense as rendered the further cised under, the United States." connection of the petitioner with said service incompatible with the best interests of it is on the ground that the validity of an

If this writ of error can be maintained, the same.” And while insisting that all authority exercised under the United States acts done or caused to be done by him were

was drawn in question. 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 formalities had been complied with. What she merly exercised by her in the office of the claimed was that there were certain rules Adjutant General of the United States and regulations of the civil service which Army, and that the relation of such peti- were not observed in the matter of her distioner, as an employee, to the executive civil missal, and that, therefore, such dismissal service, in respect of appointment, promo- was illegal. tion, and removal, is a matter wholly within

But this contention did not draw in ques. the competence and cognizance of the politi- tion the validity of an authority exercised cal department, and the action of the head under the United States, but the construcof an executive department in respect

tion and application of regulations of the thereof is not subject to be reviewed, re

exercise of such authority. versed, set aside, or controlled by a court lina v. Seymour (United States ex rel. South

As Mr. Justice Gray said, in South Caroof law, nor can his action in that behalf Carolina v. Seymour) 153 U. S. 353, 38 L. be commanded, directed, or compelled by the ed. 742, 14 Sup. Ct. Rep. 871, referring to an writ of mandamus, as the petitioner in her identical provision of the laws of the Dis. said petition has prayed.”

trict prior to the Code: "In order to come Relator filed a demurrer to the answer, within this clause, the validity, and not the which was overruled, whereupon she elected construction only, of a treaty or statute to stand by the demurrer, and judgment was of the United States, or of an authority exentered denying the writ. The judgment ercised under the United States must be was affirmed by the court of appeals (24 directly drawn in question.”