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Grand Trunk Railroad Company v. Richardson/Opinion of the Court

ERROR to the Circuit Court of the United States for the District of Vermont.

This is an action by the defendants in error to recover damages for the destruction of their saw-mill, lumber-shed, store, boarding-house, manufactured lumber, and other personal property, by fire, alleged to have been communicated by a locomotive-engine of the plaintiff in error on the seventh day of June, 1870.

It was conceded on the trial that the railroad was duly laid out, located, and surveyed, six rods in width, under a charter granted by the legislature of the State of Vermont to another company; and that, about the year 1853, the railroad, with all the property, rights, and privileges of that company, came into the possession of the plaintiff in error, who had since that time continued to operate the same.

It was further conceded, that the saw-mill, lumber-shed, and store of the defendants in error, when consumed, stood in part upon the company's land, having been erected and placed there after the plaintiff in error came into possession of the railroad.

The defendants in error gave evidence that their mill, lumbershed, and store were thus erected in part upon the company's land in 1854, and had been occupied by them from that date to the time of the fire; that these buildings were so erected near the railway-track for the purpose of delivering and receiving freight; that, soon after the mill was built, the plaintiff in error constructed a side track near to its main track, along the platform of the mill and lumber-shed, and up to the end of the mill, and the side track had been used since that time in loading lumber upon the cars; that there was a platform extending from the store of the defendants in error nearly to the main track of the railroad, and that the company was accustomed to deliver freight from its cars at said store.

The defendants in error gave in evidence a receipt, dated North Stratford, Oct. 27, 1870, and signed by the station-agent at that place, for one dollar, in payment of land-rent at their mill for the year ending Oct. 31, 1870. It appeared that this rent was charged by the company at the suggestion of its engineer having the general charge of the road-bed on that division of the road where the said mill, shed, &c., were located; and that the engineer, before the date of the receipt, had requested Mr. Richardson, one of the defendants in error, to pay the company a nominal rent for the use of the land which they were occupying, in order to prevent the latter from acquiring or claiming right thereto by adverse possession; that they had assented to this request, and, at the date of the receipt, the station-agent presented a bill for the rent against them, which purported to come from the company's principal office in Montreal; and thereupon Richardson paid the rent, and took the receipt. They never had any writing, except as above stated, authorizing them to erect or maintain said buildings on the land of the corporation, or to occupy said land or buildings. All the foregoing testimony bearing upon the matter of a license was seasonably objected to as incompetent; but the same was admitted, subject to exception.

The court thereupon held that the company's evidence would authorize the jury to find a license to maintain the said buildings, and occupy the land; to which no exception was taken.

The following provisions of the General Statutes of Vermont (ch. 28, sects. 78, 79) were relied upon as authorizing the right to recover:--

'SECT. 78. When any injury is done to a building or other property by fire communicated by a locomotive-engine of any railroad corporation, the said corporation shall be responsible in damages for such injury, unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury.

'SECT. 79. Any railroad corporation shall have an insurable interest in such property as is mentioned in the preceding section along its route, and may procure insurance thereon in its own name and behalf.'

The evidence tended to show that the fire was communicated from one of two locomotive-engines belonging to the plaintiff in error, the first drawing a passenger-train westerly, passing about half-past one o'clock in the afternoon the mill of the defendants in error; and the other, drawing a freight-train easterly, passing it about four o'clock the same afternoon. The mill and other property were situated in the town of Brunswick, Essex County, Vt., about five miles westerly from North Stratford Station, on the Connecticut River, in New Hampshire, and about twelve miles easterly from the Island Pond Station, in Vermont.

One-half to three-fourths of an hour after the last-mentioned train passed by the mill, the fire was discovered burning on the westerly end of a covered railroad-bridge, which was one hundred and ten feet long. Witnesses testified, in substance, that a strong wind was blowing at the time, which carried the fire through the bridge with great rapidity, consuming it entirely, and setting on fire the saw-mill, the north-westerly corner of which was located within twelve or fifteen feet of the south-easterly corner of the bridge, and about the same distance from the main track of the railroad; that it was a very dry time, and, by reason of the wind blowing the fire through and from the bridge, it caught upon the saw-mill and consumed it, and was blown and carried thence to the other buildings and property sued for, consuming the same.

The defendants in error also claimed to recover the value of a large quantity of manufactured lumber, consisting of headings and boards which were piled upon and near the roadway, and burned. The headings were piled in the lumber-shed and on the adjoining platform, awaiting transportation. The boards were stuck up in the mill-yard to dry, for the purpose of being manufactured into headings, and extended back from the roadway at the lumber-shed in a southerly direction.

The plaintiff in error seasonably objected to the admission of the testimony bearing upon this point; but the court overruled the objection, and exception was taken.

When the defendants in error rested their case, the plaintiff in error moved that a verdict be rendered in its favor, for the following reasons:--

1. Because the damages claimed were too remote.

2. Because a large part of the property sued for was wrongfully on their railroad, and not within the statutes of Vermont referred to; but the court denied the motion.

The evidence of the plaintiff in error tended to show that this fire was not communicated by either of the engines complained of; but, on the contrary, that the defendants in error for a long time had maintained a constant fire at the end of their tramway, about 163 feet down stream on the same bank of the river, where the westerly end of the railroad-bridge rested, for the purpose of burning the edgings, stickings, slabs, and other waste material from the saw-mill; and that the fire which consumed their bridge and the property of the defendants in error ran along the bank of the river, or was blown by the wind to the westerly end of the bridge, where it was first discovered as aforesaid.

It having appeared that the company, before and at the time of this fire, had employed one Turcot to watch their bridge on account of the danger of its being burned, and the defendants in error having claimed on the trial that the company had not used all due caution and diligence and had not employed all suitable expedients to prevent the fire, for the reason, amongst others, that said Turcot (as the defendants in error contended) did not watch the bridge more closely just before the fire, the company offered to show that it was not the usual practice among railroads in that section of the country to employ a man to watch bridges like the one destroyed; but, on objection, the court excluded this testimony, to which the company excepted.

After the plaintiff in error had rested its case, the defendants in error, subject to its exception, were allowed to prove, that at various times during the same summer, before this fire occurred, some of the company's locomotives scattered fire when passing the mill and bridge, without showing either that those which it was claimed communicated the fire in question were among the number, or that they were similar in their make, state of repair, or management, to said locomotives.

The plaintiff in error requested the court to charge,--

1. That if the jury found that the erection of plaintiffs' buildings or the storing of plaintiffs' lumber so near to the defendant's railroad track, as the testimony would show, was an imprudent or careless act, and that such a location of this property in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive.

2. That at all events, under the circumstances disclosed in this cause, it was incumbent upon plaintiffs to use due caution and diligence and to employ suitable expedients to prevent the communication of fire.

3. That the statute upon which the action is predicated does not apply to property located within the limits of the railroad, nor to personal property temporarily on hand.

The court refused to charge the jury on the first and third points as requested, but gave the charge requested on the second point, with the qualification, that there was no evidence in the case to which it had any application; to all which the defendant excepted.

The defendant also renewed its motion that a verdict be ordered in its favor for the reasons above set forth; which was again denied by the court, and the defendant excepted.

The court charged the jury that the burden of proof was upon the plaintiffs, in the first instance, to show that the fire in question was communicated from some of the defendant's locomotive-engines to the bridge; and that, if the jury were satisfied of that fact by a fair balance of evidence, then the plaintiffs were entitled to recover, unless the defendant had established, by a fair balance of evidence, that it had used all due caution and diligence and had employed all suitable expedients to prevent the fire; that the burden of proof was on the defendant as to the latter branch of the case; to which exception was taken.

The jury returned a verdict for $22,312.12 damages. The company moved to set aside the verdict and grant a new trial for reasons set forth in the bill of exceptions; which motion was overruled, and the company excepted.

Mr. George A. Bingham and Mr. Ossian Ray for the plaintiff in error.

The receipt, dated Oct. 27, 1870, for rent for the year ending Oct. 31, 1870, was incompetent evidence, because it was given subsequent to the fire, when the relations, rights, and liabilities of the parties at the time of such fire could not and ought not to be varied; nor was the transaction had for any other purpose than to show a surrender on the part of the defendants in error of any right they had gained by adverse possession.

It was competent for the plaintiff in error to show that it was not the usual practice of railroad companies in that vicinity to employ men to watch bridges like that destroyed. The presumption is, that it exercised common care and prudence in preserving its property from destruction; and the evidence rejected certainly tended to show that it not only exercised such care, but that the employment of a watchman was an act of extraordinary and unusual precaution and diligence.

It was error to admit testimony showing that some of the company's locomotives had previously scattered fire, unless it was shown that either of those in question was among the number, or was similar in construction, state of repair, or management. Boyce v. Cheshire R.R., 42 N. H. 97; Phelps v. Conant, 30 Vt. 277, 284; Malton v. Nesbit, 1 Car. & Payne, 70; Hubbard v. Railroad Co., 39 Me. 506; Standish v. Washburn, 21 Pick. 237; Collins v. Dorchester, 6 Cush. 396; Robinson v. Railroad Co., 7 Gray, 92, 95; Jordan v. Osgood, 109 Mass. 457. The effect of such evidence could not be otherwise than highly prejudicial to the plaintiff in error. Sheldon v. Railroad Co., 29 Barb. 226; Smith v. Railroad Co., 37 Mo. 287; Railroad Co. v. Doak, 52 Penn. St. 379.

Railway corporations cannot, without the consent of the legislature, surrender their franchises or any portion thereof, nor part with the control and occupancy of their roadway. 2 Gray, 404; 11 Allen, 65. A license, therefore, for the permanent use of ground, within their chartered limits, should be held void as contrary to sound public policy, and the intruder treated as a wrong-doer or trespasser, until, at least, his occupancy has ripened into a prescriptive right. Troy & Boston R.R. Co. v. Potter, 42 Vt. 265, 275, 276; Jackson v. Rutland & Burlington R.R. Co., 25 id. 150-159; Hurd v. Rutland & Burlington R.R. Co., id. 116, 121; Richards v. Railroad Co., 44 N. H. 127, 136.

If the receipt was not competent, it is clear that the property of the defendants in error was wrongfully upon the roadway; and the company was liable for its loss only upon proof of gross negligence, according to common-law principles. Jackson v. Rutland & Burlington R.R. Co., and Hurd v. Rutland & Burlington R.R. Co., supra; Bemis v. C. & P. R. R.R. Co., 42 Vt. 375; Railroad Co. v. Anderson, 20 Mich. 244.

As the property outside the roadway limits was destroyed solely by reason of the burning of that portion within them, the defendants in error cannot take advantage of their own wrong in placing their property upon the company's land.

The statute of Vermont has no application to property injured or destroyed within the limits of the roadway, even if it is rightfully there. Where property thus situated is destroyed, it is incumbent upon the plaintiffs to establish, not only the fact that the fire was communicated by the defendant's locomotives, but that it was through carelessness and negligence.

No fair construction of the seventy-eighth and seventy-ninth sections of chap. 28 of the General Statutes of Vermont gives the corporation a right to insure property wrongfully upon its premises. Chapman v. Railroad Co., 37 Me. 92.

The phrase 'along its route,' employed in the seventy-ninth section, clearly means by the side of, alongside, along the line of, lengthwise of, or near to the chartered limits of the roadway as surveyed and located, and not within, upon, over, or across the route. Bailey v. White, 41 N. H. 337; Peaslee v. Gee, 19 id. 273.

The act was passed for the purpose of aiding the adjoining land-owner, in case his property-located upon his own land, and not upon the railway-should be injured by fire from a locomotive, by casting the burden of proof on the corporation to show the exercise of due care and suitable expedients to prevent injury. Metallic Co. v. Railroad Co., 109 Mass. 277; Garris v. Scott, 9 Exch. Law, 125; Atkinson v. Waterworks Co., 9 id. 125; Hall v. Brown, 54 N. H. 495.

The plaintiff in error was entitled to a verdict because the damages claimed were too remote. Ryan v. N. Y. Central R.R., 35 N. Y. 210; Penn. R.R. v. Kerr, 62 Penn. St. 353; Hooksett v. Concord R.R., 38 N. H. 242-246; Harrison v. Berkley, 1 Strob. (S.C..) 548; Morrison v. Davis, 20 Penn. St. 171; Insurance Co. v. Tweed, 7 Wall. 44, 52; 3 Pars. on Contr. 198.

That was at least a question for the jury. Holden v. Railroad Co., 30 Vt. 297, 303, 304; Saxton v. Bacon, 31 id. 540, 546, 547; ''Toledo, &c. R.R. Co. v. Pindar'', 53 Ill. 447; Fant v. ''Toledo, &c. R.R. Co.'', 59 id. 351; Fairbanks v. Kerr, 70 Penn. St. 86; Kellogg v. Milwaukee & St. Paul R.R. Co., reported in Whart. on Neg., sect. 154.

Also as to whether the defendants in error were not guilty of contributory negligence. Kelsey v. Glover, 15 Vt. 708, 714-716; Allen v. Hancock, 16 id. 230; Cassedy v. Stockbridge, 21 id. 391; Robinson v. Cone, 22 id. 213, 225; Sessions v. Newport, 23 id. 9; Barber v. Essex, 27 id. 62; Briggs v. Taylor, 28 id. 183; Swift v. Newbury, 36 id. 355, 358, 359; Hill v. New Haven, 37 id. 501; Vinton v. Schwab, 32 id. 612; Folsom v. Underhill, 36 id. 580, 591, 592; Hodge v. Bennington, 43 id. 450; Willard v. Pinard, 44 id. 34; McCully v. Clark, 40 Penn. St. 399; Hackford v. Railroad Co., 53 N. Y. 654; Gonzales v. Railroad Co., 38 id. 440; Munger v. Railroad Co., 4 id. 349; Railroad Co. v. Van Steinburg, 17 Mich. 99; Railroad Co. v. Mills, 42 Ill. 407; Railroad Co. v. Frazier, 47 id. 505; Railroad Co. v. Shanefelt, 47 id. 497; Railroad Co. v. Terry, 8 Ohio St. 570; Webb v. Railroad Co., 57 Me. 117; Bigelow's Lead. Cas. on Torts, 589, 596; Whart. on Neg., ch. 11, sects. 420-427; Page v. Parker, 43 N. H. 363; Sioux City & P. R.R. Co. v. Stout, 17 Wall. 657; Wakefield v. C. & P. R. R.R. Co., 37 Vt. 330; Shearm. and Redf. on Neg., ch. 3, sects. 25-34.

If the defendants in error are entitled to stand in the position of licensees, or of persons going upon the railroad premises to transact business, as upon invitation, then each party is bound to use ordinary care in respect to the other, and the question of contributory negligence is for the jury. Saund. on Neg. 71-73; Balch v. Smith, 7 Hurlst. & Norm. 741; Scott v. London Docks Co., 11 Law Times, N. S. 383; Hounsel v. Smith, 7 C. B. N. S. 738; Barnes v. Wood, 9 C. B. 392; Eagan v. Railroad Co., 101 Mass. 315; Shaw v. Railroad Co., 8 Gray, 45; Bailey v. Railroad Co., 107 Mass. 496.

It is contended that as they, at best, occupied the company's land merely as licensees, the company was not involved in any liability as to the fitness of its use. Whart. on Neg., sect. 831; Murray v. McLean, 57 Ill. 378; Sweeney v. Railroad Co., 10 Allen, 368; Nicholson v. Railroad Co., 41 N. Y. 525, 530; Kenney v. Railroad Co., 34 N. J. 513; Zoebisch v. Tarbell, 10 Allen, 385; Chapman v. Rothwell, El. B. & E. 668; Hill v. New Haven, 37 Vt. 501, 509; Gahajan v. Railroad Co., 1 Allen, 187; Telfer v. Railroad Co., 30 N. J. 188; Michigan Central R.R. Co. v. Anderson, 20 Mich. 244.

It was error for the court to refuse the charge that the statute has no application to property located within the limits of the railroad, or to personal property temporarily on hand. 1 Redf. on Rail. (3d ed.), sect. 126, p. 456; Pratt v. Railroad Co., 42 Me. 579. The burden of proof remained with the defendants in error throughout the trial; and they were not entitled to recover without proving the negligence of the company, as well as the communication of the fire.

Mr. Halbert E. Paine for the defendants in error.

The competency and admissibility of the evidence bearing upon the question of license, authorizing the defendants in error to occupy the company's land and maintain buildings thereon, is clear upon both principle and authority. 1 Wash. Real Prop. 542, and cases cited; 2 Am. Lead. Cases, 563, and cases cited; 1 Hill. Real Prop. 302, and cases cited.

As the statute of Vermont not only imposes a liability upon railroad companies for the destruction of property near and adjoining the route of the railway, but expressly confers upon them an insurable interest in such property, and authorizes them to procure such insurance in their own name and behalf, the damages in the case at bar were not too remote; and the company is liable, whether the fire was communicated directly and immediately to the property destroyed, or through another building. Insurance Co. v. Tweed, 7 Wall. 44; Webb v. R.R. Co., 49 N. Y. 420; Piggot v. R.R. Co., 54 E. C. L. 229; Smith v. R.R. Co., 5 Com. Pleas, 98; Fant v. R.R. Co., 4 Chicago Legal News (1 Redf. Cas., 2d ed., 350); R.R. Co. v. Stanford, 12 Webb (Kan.), 354; Kellogg v. R.R. Co., 26 Wis. 223; Hart v. R.R. Co., 13 Mass. 99; Perley v. R.R. Co., 98 id. 414; Quigley v. R.R. Co., 8 Allen, 438; Hooksett v. R.R. Co., 38 N. H. 242; Cleveland v. R.R. Co., 42 Vt. 449.

The cases of Ryan v. ''N. Y. Cen. R.R. Co., 35 N. Y. 210, and Penn. R.R. Co. v. Kerr'', 62 Penn. St. 353, are contrary to the doctrine announced in all the other authorities bearing upon the question.

If the evidence offered by the plaintiffs below in relation to the scattering of fire by engines of the company at various times previous to the fire, without showing that either of those alleged to have communicated the fire in question was among the number, or that said locomotives were similar in their construction, state of repair, or management, to those which were claimed to have scattered the fire complained of, was admissible to either maintain the plaintiffs' case or rebut the defendant's proof, no objection to its reception can be sustained here.

Evidence that two engines had crossed the bridge shortly before it and the buildings were burned was admitted without question, and manifestly on the ground that it tended to establish a probability that one of the engines communicated the fire. But why did it tend to establish such a probability? Not because there was any evidence before the jury showing, or tending to show, that their construction was such as to necessitate or admit of the scattering of sparks or coals. No such evidence had been adduced. It tended to show the probability that one of them communicated the fire, because the mind accepts the fact that the engines at a dry season crossed this long wooden bridge just before it was found to be on fire, as tending, of itself, to show a probability that the fire was communicated by one of them. It tended to show, not a mere possibility of such a result, but a possibility which was coupled with, or rather constituted an element of, a probability of more or less strength, that the fire was communicated to the bridge by one of the engines, because, at the present time, many locomotive-engines do in fact emit sparks or coals, and lack such devices as will perfectly prevent their escape; and such fact shows a probability, for the same reason and to the same extent that it shows a possibility, that the fire was so communicated. If the use of completely and invariably effectual safeguards had become universal, then the crossing of an engine might not show such a probability, any more than the crossing of a hand-car.

While the mere fact of the crossing of an engine shows such a probability, without affirmative proof that it scatters fire, so is evidence that such engine in fact scatters fire competent as tending to strengthen a probability shown by the mere fact of the crossing without such proof. In the present condition of railway equipment, without proof that the engine actually scattered fire at the time, a presumption of more or less strength would arise, in case of a fire following the passage of these engines across the bridge, that they were not both provided with safeguards against the escape of fire which are at all times absolutely effectual; and, although the probability would be strengthened by the presence of proof that these engines actually scattered fire, it would not be wholly removed by the withdrawal of such proof. It was not necessary for the plaintiffs to show that the two engines which crossed the bridge just before the fire were not so constructed, or, as an alternative, to fail wholly in the attempt to establish a probability that they caused the fire; but it was incumbent on the defendant, in order to destroy the probability raised by proof that the engines had previously crossed the bridge, to show that they were so constructed. Under the circumstances, proof that several of the engines of the same road had been seen to scatter fire tends to strengthen the probability that the engines which crossed the bridge were without effective safeguards, and so occasioned the fire. Certainly the fact that a part of the engines of a railway company were unprovided with such safeguards raises a probability, not that the others were, but that they were not, so provided. There being a unity of management in a railway company, evidence that some of its engines are permitted to scatter fire impeaches that management, and raises a probability more or less strong as to the cause of the particular loss.

If evidence that two unknown engines crossed the bridge, a little before the fire, raised a probability, however slight, that the damage resulted from the negligent acts of the defendant, and was therefore competent, there can be no doubt that the further evidence that several unknown engines had scattered fire near the same time and place would tend to strengthen the probability so raised.

As the evidence offered would tend to show a possibility which, under the circumstances, was tantamount to a probability that the fire was communicated by one of the engines which crossed a little before its discovery, it was competent. Upon principle, this would seem to be the true doctrine; and it is supported by most, if not all, of the authorities. Piggot v. R.R. Co., supra; Field v. R.R. Co., 32 N. Y. 339; Webb v. R.R. Co., supra; Cleaveland v. R.R. Co., supra; Burk v. R.R. Co., 7 Heisk. 456; Garrett v. R.R. Co., 36 Iowa, 122; Gandy v. R.R. Co., 30 id. 420; R.R. Co. v. Williams, 42 Ill. 356; Smith v. R.R. Co., 10 R. I. 22; Longabaugh v. R.R. Co., 4 Nev. 811; Fitch v. R.R. Co., 45 Mo. 322.

If it had appeared that some of these engines did scatter fire, then the fact of the passage of the two engines would have established such a possibility and probability. The plaintiffs met any possible claim, that none of the defendant's engines used in the vicinity could scatter fire, by showing affirmatively that some of them did. The plaintiffs thereby established the possibility, and consequent probability, that the damage resulted from the negligent act of the defendant; and clearly fastened upon it the burden of showing that the particular engines which crossed the bridge before the fire were both so constructed, regulated, and operated as to prevent the scattering of fire. Proof that other engines have thrown fire as far as the building destroyed, offered in a case where the building is separated from the track, stands upon precisely the same footing as proof that other engines have 'scattered fire,' offered in a case where a railway bridge itself is first burned. The question in each case is, whether the fire can be thrown far enough to occasion the damage. It is thrown far enough when 'scattered,' in one case, as clearly as when thrown to the distant building destroyed, in the other.

The court properly refused to charge the jury, that if they found that the erection of the plaintiffs' buildings or the storing of their timber so near to the defendants' railway track was an imprudent or careless act, and that such a location of this property in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive.

When a person, in the lawful use of his own property, places it in a situation of hazard and exposure near the line of a railway, he does not thereby lose his remedy for injuries occasioned by the negligent acts of the railway company. Cook v. The Champlain Transportation Co., 1 Den. 91; Fero v. R.R. Co., 22 N. Y. 215.

The rule releasing the defendant from liability on account of contributory negligence of the plaintiff is limited to cases where the negligent act or omission of the plaintiff is the proximate cause of the loss. Flynn v. R.R. Co., 40 Cal. 18, and cases cited; Lowell v. R.R. Co., 23 Pick. 31; Littleton v. Richardson, 32 N. H. 59; Norris v. Litchfield, 35 id. 271; Ingersoll v. R.R. Co., 8 Allen, 438; Davies v. Mann, 10 M. & W. 545; Richmond v. R.R. Co., 18 Cal. 357; Kline v. R.R. Co., 37 id. 400; Needham v. R.R. Co., id. 409; Wright v. Brown, 4 Ind. 98; Kerwhacker v. R.R. Co., 3 Ohio St. 172; R.R. Co. v. Elliott, 4 id. 474.

The plaintiffs' failure to take unusual care of the property destroyed is no defence to the action. Shearm. Neg. (3d ed.) 35, 404, and cases cited; Kellogg v. R.R. Co., 26 Wis. 223.

'Negligence of the plaintiff which precludes a recovery is where, in the presence of a seen danger (as where the fire has been set), he omits to do what prudence requires to be done, under the circumstances, for the protection of his property, or does some act inconsistent with its preservation. When the danger is not seen, but anticipated merely, or dependent on future events (such as the future continuance of defendant's negligence), plaintiff is not bound to guard against it by refraining from his usual course (being otherwise a prudent one) in the management of his property and business. In the exercise of his lawful rights, every person has a right to presume that every other person will perform his duty, and obey the law; and it is not negligence for him to assume that he is not exposed to a danger which can only come to him through a disregard of the law on the part of some other person.' Kellogg v. R.R. Co., 26 Wis. 223, and cases cited.

The next exception is based upon the refusal of the court to charge the jury 'that the statute upon which the action is predicated does not apply to property located within the limits of the railroad, nor to personal property temporarily on hand.'

The circumstance that the property destroyed was located on the defendant's land by leave of the defendant, and without charge for rent, would not defeat the plaintiffs' right to recover. R.R. Co. v. Derby, 14 How. 485; Steamboat New World et al. v. King, 16 id. 469; Ingersoll v. R.R. Co., 8 Allen, 440.

It is probable that the second branch of this exception rests upon the case of Chapman v. R.R. Co., 37 Me. 92. But if it were possible, in the absence of other authorities, to extend the scope of that decision so as to cover the broad, unqualified proposition, that the statute does not apply to personal property temporarily on hand, nevertheless the case of Pratt v. R.R. Co., 42 id. 579, decided two years later by the same court, effectually and completely disposes of such a construction. Trask v. R.R. Co., 15 Gray, 71; Perley v. R.R. Co., 98 Mass. 418; Cleaveland v. R.R. Co., 42 Vt. 449; Ross v. R.R. Co., 6 Allen, 87.

If there could be any doubt at common law respecting the correctness of the charge of the court on the tenth point, there can be none under the statute of Vermont.

MR. JUSTICE STRONG delivered the opinion of the court.

The plaintiffs below were permitted to adduce evidence that those of the injured buildings which were within the lines of the roadway had been erected within those lines by the license of the company, for the convenience of delivering and receiving freight. The admission of this evidence is the subject of the first assignment of error; and in its support it has been argued that it was the duty of the railroad company to preserve its entire roadway for the use for which it was incorporated; that it had no authority to grant licenses to others to use any part thereof for the erection of buildings; and, therefore, that the license to the plaintiffs, if any was made, was void. Thus the basis of the objection to the evidence appears to be, that it was immaterial. We are, however, of opinion that it was properly admitted. If the buildings of the plaintiffs were rightfully where they were, if there was no trespass upon the roadway of the company, it was clearly a pertinent fact to be shown; and while it must be admited that a railroad company has the exclusive control of all the land within the lines of its roadway, and is not at liberty to alienate any part of it so as to interfere with the full exercise of the franchises granted, we are not prepared to assert that it may not license the erection of buildings for its convenience, even though they may be also for the convenience of others. It is not doubted that the defendant might have erected similar structures on the ground on which the plaintiffs' buildings were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erections would not have been inconsistent with the purposes for which its charter was granted. And, if the company might have put up the buildings, why might it not license others to do the same thing for the same object; namely, the increase of its facilities for the receipt and delivery of freight? The public is not injured, and it has no right to complain, so long as a free and safe passage is left for the carriage of freight and passengers. There is, then, no well-founded objection to the admission of evidence of a license, or evidence that the plaintiffs' buildings were partly within the line of the roadway by the consent of the defendant. The objection to the mode of proof is equally unsustainable. There was quite enough, without the receipt of Oct. 27, 1870, to justify a finding by the jury that the plaintiffs were not trespassers. But the receipt itself was competent evidence. It is true, it was given after the occurrence of the fire; but it was a mutual recognition by the company and by one of the plaintiffs that the occupation of the roadway by the buildings had been, and that it was at the time of the fire, permissive, and not adverse. Taking the receipt, as the bill of exception shows, was the act of the defendant by its agent, the engineer who had charge of the road-bed. It was, therefore, an admission by the company that there had been consent to the occupation.

The second assignment of error is, that the court excluded testimony offered by the defendant to show that the usual practice of railroad companies in that section of the country was not to employ a watchman for bridges like the one destroyed. It is impossible for us to see any reason why such evidence should have been admitted. The issue to be determined was, whether the defendant had been guilty of negligence; that is, whether it had failed to exercise that caution and diligence which the circumstances demanded, and which prudent men ordinarily exercise. Hence the standard by which its conduct was to be measured was not the conduct of other railroad companies in the vicinity; certainly not their usual conduct. Besides, the degree of care which the law requires in order to guard against injury to others varies greatly according to the circumstances of the case. When the fire occurred which caused the destruction of the plaintiffs' buildings, it was a very dry time, and there was a high wind. At such a time, greater vigilance was demanded than might ordinarily have been required. The usual practice of other companies in that section of the country sheds no light upon the duty of the defendant when running locomotives over long wooden bridges, in near proximity to frame buildings, when danger was more than commonly imminent.

The third assignment of error is, that the plaintiffs were allowed to prove, notwithstanding objection by the defendant, that, at various times during the same summer before the fire occurred, some of the defendant's locomotives scattered fire when going past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire was among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have caused the fire complained of. The evidence was admitted after the defendant's case had closed. But, whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its admission as rebutting was within the discretion of the court below, and not reviewable here. The question, therefore, is, whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiffs' property, were caused by any of the defendant's locomotives. The question has often been considered by the courts in this country and in England; and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. Piggot v. R.R. Co., 3 M. G. & S. 229; Sheldon v. R.R. Co., 14 N. Y. 218; Field v. R.R. Co., 32 id. 339; Webb v. R.R. Co., 49 id. 420; Cleaveland v. R.R. Co., 42 Vt. 449; R.R. Co. v. Williams, 42 Ill. 358; Smith v. R.R. Co., 10 R. G. 22; Longabaugh v. R.R. Co., 4 Nev. 811. There are, it is true, some cases that seem to assert the opposite rule. It is, of course, indirect evidence, if it be evidence at all. In this case it was proved that engines run by the defendant had crossed the bridge not long before it took fire. The particular engines were not identified; but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire; and it seems to us, that, under the circumstances, this probability was strengthened by the fact that some engines of the same defendant, at other times during the same season, had scattered fire during their passage. We cannot, therefore, sustain this assignment.

It is contended further on behalf of the defendant, that there was error in the court's refusal to direct a verdict in its favor because a large part of the property destroyed was wrongfully on their railway, and not within the purview of the statute of Vermont, on which the plaintiffs relied. If, however, we are correct in that we have heretofore said, it was not for the court to assume that any part of the property was on the roadway wrongfully, and to instruct the jury on that assumption; and, even if it had been wrongfully there, the fact would not justify its destruction by any wilful or negligent conduct of the defendant. In Bains v. R.R. Co., 42 Vt. 380, it was said that a railroad company in the discharge of its duties, and in the exercise of its right to protect its property from injury to which it is exposed by the unlawful act or neglect of another, is bound to use ordinary care to avoid injury even to a trespasser. If this be the correct rule (and it cannot be doubted), how could the Circuit Court have charged as a conclusion of law that the plaintiffs could not recover because their property was wrongfully within the lines of the defendant's roadway?

Again: the court was asked to direct a verdict for the defendant, for the alleged reason that the damages were too remote. The bill of exceptions shows that the fire originated in the bridge of the defendant, and spread thence to the mill and other property of the plaintiffs; and we are referred to the rulings in Ryan v. The New York Central R. W. Co., 35 N. Y. 210, and Penn. R.R. Co. v. Kerr, 62 Penn. St. 353, as showing, that, in such a case, negligently setting the bridge on fire is not to be considered the proximate cause. We do not, however, deem it necessary to inquire whether the doctrine asserted in those cases is correct. It is in conflict with that laid down in many other decisions; indeed, in conflict, we think, with the large majority of decisions made by the American courts in similar cases. But we think the statute of Vermont has a direct bearing upon the defendant's liability, and contemplates such buildings and property as were destroyed in this instance. The buildings were along the route of the railroad; though some of them were, in whole or in part, within the lines of the roadway. It is obvious to us that the phrase 'along its route' means in proximity to the rails upon which the locomotive-engines run. That the statute gave an insurable interest in the property, for the destruction of which the corporation was made liable, does not necessarily show that the only property intended was such as was outside the lines of the roadway. That, indeed, was comprehended; but property lawfully within the lines, which the company did not own, equally needed protection. The statute was designed to be a remedial one, and it is to be liberally construed. In Massachusetts, there is a statute almost identical with that of Vermont; and under it the Supreme Judicial Court of that State held, in Ingersoll v. The Stockbridge & Pittsfield R.R. Co., and Quigley v. Same, 8 Allen, 438, that the company was liable to both the plaintiffs, though the fire communicated directly from the locomotive to Ingersoll's barn, and spread through an intervening shed, which stood partly upon the railroad location, to the barn of Quigley. The court said, 'There is nothing in the statement to show that any fault of the plaintiff contributed to the loss, if the buildings were lawfully placed where they stood. The fact that a building stands near a railroad, or wholly or partly on it, if placed there with the consent of the company, does not diminish their responsibility in case it is injured by fire communicated by their locomotives. The legislature have chosen to make it a condition of the right to run carriages impelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which the fire may cause.' These cases are directly in point as to the reach of the statute. They show that it embraces buildings on the line of the roadway, and buildings injured by fire spreading from other buildings to which fire was first communicated from a locomotive. To the same effect is Hart v. The Western R.R. Co., 13 Met. 99. And, if it be conceded that the statute is applicable only to injuries of buildings and other property which the railroad company may insure, we do not perceive why it may not obtain insurance of buildings and property on its location with its consent. But, if the statute is applicable to the case, it is plain that the Circuit Court could not direct a verdict for the defendant for the reason that the damages were too remote.

Exception was taken at the trial to the refusal of the court to affirm the defendant's points; the first of which was, that 'if the jury should find that the erection of the plaintiffs' buildings, or the storing of their lumber so near the defendant's railroad track, as the evidence showed, was an imprudent or careless act, and that such a location in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive.' We think the court correctly refused to affirm this proposition. The fact that the destroyed property was located near the line of the railroad did not deprive the owners of the protection of the statute, certainly, if it was placed where it was under a license from the defendant. Such a location, if there was a license, was a lawful use of its property by the plaintiffs; and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant. Cook v. ''Champlain Transp. Co.'', 1 Den. 91; Ferc v. Railroad Co., 22 N. Y. 215. Besides, it was not for the court to affirm that even an imprudent location of the plaintiffs' buildings and property was a proximate cause of the loss.

The second request for instruction was, 'that at all events, under the circumstances disclosed in the case, it was incumbent upon the plaintiffs to use due caution and diligence, and to employ suitable expedients to prevent the communication of fire.' The request was broad; but the court gave the instruction asked, adding only that there was no evidence in the case to which it had any application; and we have been unable to find any in the record. A question is not to be submitted to a jury without evidence.

The third prayer for instruction was based on the assertion, that 'the statute upon which the action was predicated does not apply to property located within the limits of the railroad, nor to personal property temporarily on hand.' This view of the statute, as we have already remarked, is not, in our judgment, correct as a general proposition, and certainly not in its application to a case where property is placed within the lines of a railway, by the consent of a railway company, for the convenience in part of its traffic.

It remains only to add, that we see no just ground of complaint of the affirmative instruction given to the jury. It was in accordance with the rule prescribed by the statute; and there seems to have been no controversy in the Circuit Court respecting the question, whether, if the fire was communicated to the bridge by a locomotive, it caused the injury to the plaintiffs.

The judgment is, therefore, affirmed.


text: Talk:Grand Trunk Railroad Company v. Richardson/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Osborn v. United States (91 U.S. 474)

ERROR to the Circuit Court of the United States for the District of Kansas.

1. Subject to exceptions therein prescribed, a pardon by the President restores to its recipient all rights of property lost by the offence pardoned, unless the property has by judicial process become vested in other persons.

2. A condition annexed to a pardon, that the recipient shall not by virtue of it claim any property, or the proceeds of any property, sold by the order, judgment, or decree of a court, under the confiscation laws of the United States, does not preclude him from applying to the court for the proceeds of a confiscated money-bond secured by mortgage, which were collected by the officers of the court in part by voluntary payment by the obligors, and in part by sale of the lands mortgaged. The condition is only intended to protect purchasers at judicial sale, decreed under the confiscation laws, from any claim of the original owner for the property sold or the purchase-money.

3. The proceeds of property confiscated, paid into court, are under its control until an order for their distribution is made, or they are paid into the hands of the informer entitled to them, or into the treasury of the United States.

4. Where moneys belonging to the registry of the court are withdrawn from it without authority of law, the court can, by summary proceedings, compel their restitution; and any one entitled to the moneys may apply to the court by petition for a delivery of them to him.

Submitted on printed arguments by Messrs. R. M. Corwine, Q. Corwine, J. W. English, Henry Beard, and C. H. Armes, for the plaintiff in error, and by Mr. E. S. Brown for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Osborn v. United States (91 U.S. 474)


text: Talk:Osborn v. United States (91 U.S. 474)


text:
Osborn v. United States (91 U.S. 474)/Opinion of the Court

The material questions presented in this case for our determination relate, first, to the effect of the President's pardon upon the rights of the petitioner to the proceeds of his property confiscated by the decree of the District Court; and, second, to the power of the court to compel restitution to its registry of moneys illegally received by its former officers.

In May, 1863, the District Court of Kansas decreed the condemnation and forfeiture to the United States of the several bonds and mortgages described in the information filed by the government. In June following, it ordered that the several debtors on these bonds should, within five months thereafter, pay into court the money due by them respectively; and that, in default of such payment, the clerk should issue to the marshal orders for the sale of the mortgaged property, upon which he should proceed as on execution under the laws of Kansas. Some of the debtors paid the amounts due by them into court; but the majority of them failed in this respect, and orders for the sale of the property mortgaged were issued to the marshal. To him the greater number paid without sale; but, in some instances, sales were made. Over $20,000 in this way came into the possession of officers of the court.

There were at the time numerous other confiscation cases pending in the court, and the moneys received from them were indiscriminately mixed with the moneys received in the cases against the property of the petitioner. None of the moneys received in any of the cases was paid into the treasury of the United States, and no order was made by the court for any such payment. Some of them were deposited in a banking-house at Leavenworth, designated as the place of deposit of moneys paid into court, and afterwards drawn out; some were obtained by officers of the court, and to an extent greatly in excess of their legal charges; and some of them were paid to the judge. The moneys from the different confiscation cases, being indiscriminately mixed, would seem to have been taken by the officers of the court whenever funds were needed by them, without regard to the sources from which they were derived, or the propriety of their application to the purposes for which they were used.

In April, 1866, the petitioner applied to the court for leave to file a petition for the restoration to him of the proceeds of his property, after deducting the costs of the legal proceedings, alleging that he had been pardoned by the President of the United States, and setting forth a copy of the pardon. The pardon was issued in September, 1865, and was in terms a full pardon and amnesty for all offences committed by the petitioner, arising from participation, direct or indirect, in the rebellion, subject to certain conditions. One of these conditions provided that the petitioner should pay all costs which may have accrued in proceedings instituted or pending against his person or property before the acceptance of the pardon. Another condition was, that the petitioner should not by virtue of the pardon claim any property, or the proceeds of any property, which had been sold by the order, judgment, or decree of a court under the confiscation laws of the United States.

The District Court refused the application; but the Circuit Court, on appeal, reversed its order, and allowed the petition to be filed. The District Court held, it would seem, that the conditions attached to the pardon precluded the petitioner from seeking to obtain the proceeds of his property: but the Circuit Court was of opinion that the effect of a pardon was to restore to its recipient all rights of property lost by the offence pardoned, unless the property had, by judicial process, become vested in other persons, subject to such exceptions as were prescribed by the pardon itself; that until an order of distribution of the proceeds was made in these cases, or the proceeds were actually paid into the hands of the party entitled as informer to receive them, or into the treasury of the United States, they were within the control of the court, and that no vested right to the proceeds had accrued so as to prevent the pardon from restoring them to the petitioner. Woolworth's Rep. 198. This ruling is here assailed by officers of the court, who are called upon to make restitution of a portion of the proceeds they obtained, not by the United States, who are alone interested in the decision. It is not a matter for these officers to complain that proceeds of property adjudged forfeited to the United States are held subject to the further disposition of the court, and possible restitution to the original owner. That is a matter which concerns only the United States, and they have not seen fit to object to the decision. But, independently of this consideration, we are clear that the decision was correct. The pardon, as is seen, embraces all offences arising from participation of the petitioner, direct or indirect, in the rebellion. It covers, therefore, the offences for which the forfeiture of his property was decreed. The confiscation law of 1862, though construed to apply only to public enemies, is limited to such of them as were engaged in and gave aid and comfort to the rebellion. 12 Stat., sect. 7, p. 590. The pardon of that offence necessarily carried with it the release of the penalty attached to its commission, so far as such release was in the power of the government, unless specially restrained by exceptions embraced in the instrument itself. It is of the very essence of a pardon that it releases the offender from the consequences of his offence. If in the proceedings to establish his culpability and enforce the penalty, and before the grant of the pardon, the rights of others than the government have vested, those rights cannot be impaired by the pardon. The government having parted with its power over such rights, they necessarily remain as they existed previously to the grant of the pardon. The government can only release what it holds. But, unless rights of others in the property condemned have accrued, the penalty of forfeiture annexed to the commission of the offence must fall with the pardon of the offence itself, provided the full operation of the pardon be not restrained by the conditions upon which it is granted. The condition annexed to the pardon of the petitioner does not defeat such operation in the present case. The property of the petitioner forfeited consisted of numerous money-bonds, secured by mortgage on lands in Kansas. These bonds were not sold under the confiscation laws: they were collected by the officers of the court, in part by voluntary payments by the obligors, and in part by sale of the lands mortgaged. These lands did not belong to the petitioner. A mortgage in Kansas does not pass the title of the property mortgaged: it is a mere security for the debt, to which the creditor may resort to enforce payment. The property mortgaged was not confiscated nor sold under the confiscation laws. When a bond of one of the debtors was not voluntarily paid, the court proceeded to enforce its payment by the ordinary measure resorted to in the case of mortgages; that is, a sale of the security.

The object of the condition in question annexed to the pardon was to protect the purchaser of property of the petitioner, at a judicial sale decreed under the confiscation laws, from any claim by him either for the property or the purchase-money. Numerous sales had been made under decrees in confiscation cases, and a similar condition was usually inserted in pardons to secure the purchasers from molestation. Full effect is thus given to the condition; and, as a pardon is an act of grace, limitations upon its operation should be strictly construed.

But it is contended, that, as the bonds were forfeited to the government by the decree of the District Court, there can be no restitution except by grant or conveyance of some kind from the government, and that the proprietary interests of the government can only be disposed of by act of Congress. The answer is, that the forfeiture results, not from the decree of the court, but from the offence which the decree establishes and declares. The pardon, in releasing the offence, obliterating it in legal contemplation (Carlisle v. United States, 16 Wall. 151), removes the ground of the forfeiture upon which the decree rests, and the source of title is then gone.

But, were this otherwise, the constitutional grant to the President of the power to pardon offences must be held to carry with it, as an incident, the power to release penalties and forfeitures which accrue from the offences.

The petitioner being restored by the pardon to his rights in the proceeds of the property forfeited, after deducting from them the costs of the legal proceedings, naturally invoked the aid of the court in which the proceedings were had, or to which they were transferred, for restitution of the proceeds. Proceedings in confiscation cases are required by the statute to conform as nearly as may be to proceedings in admiralty or revenue cases; and in admiralty it is the constant practice for persons having an interest in proceeds in the registry of the court to intervene by petition and summary proceedings to obtain a delivery of the moneys to which they are entitled. The forty-third admiralty rule recognizes this right; and in cases without number the right has been enforced. The power of the court over moneys belonging to its registry continues until they are distributed pursuant to final decrees in the cases in which the moneys are paid. If from any cause they are previously withdrawn from the registry without authority of law, the court can, by summary proceedings, compel their restitution. In the present case, it is no answer to the order for restitution that the appellants received the moneys they obtained as officers of the court, and that they have long since ceased to be such officers. If the moneys were illegally taken, they must be restored; and, until a decree of distribution is made and enforced, the summary power of the court to compel restitution remains intact. The power could be applied in no case more fittingly than to previous officers of the court.

The careful and labored reports of the commissioners appointed by the court to examine into the proceedings in the confiscation cases, ascertain the expenses incurred, and trace out as far as possible the moneys received, were properly confirmed. There is no objection to their findings which merits consideration.

The decree brought before us for review must be affirmed, except as to the costs of the proceedings subsequent to the presentation of the application of the petitioner. Those costs should be apportioned against the parties ordered to make restitution, according to the respective amounts they are adjudged to restore. The cause will, therefore, be remanded, with directions to modify the decree in this particular; but, in all other respects,

The decree is affirmed.


text: Talk:Osborn v. United States (91 U.S. 474)/Opinion of the Court


text:
Lloyd v. Fulton

APPEAL from the Circuit Court of the United States for the Northern District of Georgia.

Fulton, the appellee, having by his marriage acquired large means, which he had verbally agreed before and after his marriage should be held for the sole and separate use of his wife, executed the following indenture:--

'STATE OF GEORGIA, Columbia County.

'This indenture, made this, the fourteenth day of September, 1864, between Montroville C. Fulton, of the county and state aforesaid, of the first part, and James S. Hamilton, of the same county and state, of the second part, witnesseth that said party of the first part, for and in consideration of the naturallove and affection which he has and bears towards his wife, Virginia C. Fulton, as well as in consideration of the sum of ten dollars to him in hand paid by said party of the second part at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, bargained, sold, delivered, released, conveyed, and confirmed, and by these presents doth give, grant, bargain, sell, deliver, release, convey, and confirm, unto the said party of the second part, and to his successors and assigns, subject to the uses and trusts hereinafter expressed, the following-described real and personal property; to wit (the description of the property is omitted).

'In trust, nevertheless, to and for the sole and separate use, benefit, and behoof of Virginia F. Fulton, wife of the said party of the first part, for and during the term of her natural life, free from the debts, liabilities, or contracts of the said party of the first part, or any future husband, with remainder at her death to her children then in life, or who have issue alive at that time (the issue of any deceased child taking the parent's proportionate share); but should she die leaving no child, or issue of a child, surviving her, then with remainder to her heirs at law. Provided always, and it is distinctly understood, that said Virginia F. Fulton, at any time after the execution of these presents, during coverture or widowhood, may, by her last will and testament, give, demise, or bequeath the entire trust-estate, with income and increase thereof, to such person or persons as she may see fit, as if she were sole and unmarried; but in case of her death without leaving any will, or of any legal disability to make a will, then the trust-estate shall, after her death, vest as aforesaid in her children or other heirs in law. And provided, further, that the said Virginia F. Fulton shall be authorized at any time, upon the death, resignation, or removal of the party of the second part, or any of his successors, by instrument in writing, under her hand and seal, to appoint the said party of the first part, or any other fit and proper person, trustee in the place and stead of the previous trustee; and the person so appointed shall immediately and ipso facto become entitled to all the right and authority hereinafter granted, unless restrained in the deed of appointment, which said Virginia F. shall be authorized to do. And provided, also, that the said party of the second part, or the party of the first part in the event of becoming trustee under this instrument, shall be authorized at any time to sell, mortgage, lease, exchange, or otherwise dispose of at discretion, the trust-estate, or its increase, or any portion thereof, reinvesting the proceeds in such other property, real, personal, or mixed, as may be deemed best by him; and shall also be authorized, for the purpose of supporting, maintaining, and educating the said Virginia F. and her children, to encroach upon the corpus of the estate without authority from any court. That all subsequent trustee or trustees shall only be authorized to sell, lease, or exchange, and to reinvest, upon the written consent of said Virginia F., and for the purpose of support, maintenance, and education, shall only be allowed to encroach upon the corpus during the existing war, and upon the written direction of said Virginia F. so to do.

'And provided, finally, that the separate receipt of the said Virginia F., notwithstanding coverture, shall be a sufficient and legal discharge to the party of the second part or party of the first part (in the event of his appointment as trustee) for the yearly income of the trust-estate, or any portion of the corpus consumed, and maintenance and education, and that they shall not be required to make annual or other returns to the court of ordinary or other court. That in the event of the death of the said Virginia F. without making a will, and leaving children, or issue of children, the party of the second part or the party of the first part, if the trustee, shall be authorized to keep the estate together, exercising the same power hereinbefore granted until such time as he shall deem it advisable to distribute the estate among the remaindermen; but in the event of the death of the said Virginia F. intestate, and leaving no child, or issue of a child, surviving her, then the trustee for the time being is to distribute the estate among the heirs at law immediately.

'In witness whereof, the said party of the first part hath hereunto set his hand and seal, the day and year first above written in duplicate.

'MONTROVILLE C. FULTON. [L. S.]

'Signed, sealed, and delivered in presence of us,

ROBERT MARTIN.

B. B. WILKERSON.

J. E. SMITH.

E. J. SHORT, J. I. C.'

title: Lloyd v. Fulton


text: Talk:Lloyd v. Fulton

title: Talk:Lloyd v. Fulton


text:
Lloyd v. Fulton/Opinion of the Court

The property conveyed, exclusive of slaves, was of less value than that reserved; and the latter was, at the date of the indenture, worth more than double the amount of all his indebtedness.

The original trustee having resigned his office, the appellee was appointed in his stead. He had given his two promissory notes bearing date May 16, 1861, one payable Sept. 1 then next ensuing, and the other Sept. 1, 1862, each for the sum of $5,000, to James Lloyd. Suit having been brought upon these notes, judgment was rendered against him, May 15, 1871, and an execution levied upon the trust-property. He, as trustee, thereupon sued out an injunction restraining a sale. The Circuit Court having decreed in his favor, the case comes here on appeal.

The facts are further stated in the opinion of the court.

Sect. 1954 of the Code of Georgia, in force Sept. 14, 1864, reads as follows:--

'Acts Void against Creditors.-The following acts by debtors shall be fraudulent in law against creditors, and as to them null and void; viz.:--

'1. Every assignment or transfer by a debtor, insolvent at the time, of real or personal property of any description, to any person, either in trust or for the benefit of himself or any one or more of his creditors, or any person appointed by him, to the exclusion of any other creditor in the equal participation of such property, unless such assignment or transfer is a bona fide sale, in extinction, in whole or in part, of the debt of the purchaser, and without any trust or benefit reserved to the seller or any person appointed by him.

'2. Every conveyance of real or personal estate by writing or otherwise, and every bond, suit, judgment, and execution, or contract of any description, had or made with intention to delay or defraud creditors, and such intention known to the party taking; a bona fide transaction on a valuable consideration, without notice or ground for reasonable suspicion, shall be valid.

'Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance.'

Mr. P. Phillips for the appellant.

The deed upon its face shows that it is a voluntary conveyance; and there is nothing dehors which entitles it to any other character. The debt which it seeks to avoid was contracted four years prior to its execution. The prima facie presumption is, therefore, that the deed is fraudulent as against a prior creditor. Howard v. Snelling, 32 Ga. 206.

The conveyance, under the circumstances, is void. Parish v. Murpheree, 13 How. 93.

Mr. John D. Pope, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

All the testimony in this case was taken by the appellee. He was complainant in the suit. Only two witnesses were examined, himself, and his brother-in-law James S. Hamilton. There is no discrepancy in their statements. The facts lie within narrow limits.

Fulton, the appellee, married Virginia F. Hamilton, the daughter of Thomas N. Hamilton, in the year 1851. Her father was a man of very large fortune. Fulton received by her, before and after her father's death, more than $100,000. He had himself, at the time of his marriage, substantially nothing. His father-in-law died intestate in 1859. Before and after his marriage, Fulton promised his father-in-law to settle his wife's fortune upon her. After his father-in-law's death, he made the same promise to her brother, James S. Hamilton, who administered upon his father's estate. Nothing in fulfilment of these promises was done by Fulton until the 14th of September, 1864. On that day he executed to James S. Hamilton the deed made a part of the bill. It conveyed the premises in controversy in trust for the sole and separate use of the wife of the appellee and her children. The deed contained, among other things, a provision, that, if Hamilton should die, resign, or be removed from the trusteeship, she might appoint her husband, or any other fit person, as trustee in his place. On the same day Hamilton resigned, and Fulton was appointed. On the 16th of May, 1861, Fulton executed to James Lloyd two notes of $5,000 each, one payable on the 1st of September following, the other on the 1st of September, 1862. There was due on these notes, at the date of the trustdeed, $11,780. Fulton then owed to other persons not exceeding $2,000. This was the extent of his indebtedness. The aggregate of his liabilities was less than $14,000. He retained in his hands property worth $36,000, besides non-enumerated articles worth $20,000 in Confederate currency. The point of depreciation which that currency had then reached is not shown. The property reserved was of greater value than that conveyed. After the execution of the deed, he was able to pay the notes. In 1862 he offered to pay them in Confederate currency, which was then but little depreciated. Payment in that medium was refused. His ability to pay continued until 1866. In that year he embarked in the enterprise of raising cotton in Arkansas. The result wrecked his fortune, and ruined him. He has since been unable to pay the notes. Suit was commenced against him upon the notes in February, 1868; and in May, 1871, judgment was recovered for $10,000 with interest, amounting to $6,447.81 and costs. Execution was issued and levied upon the trust-property described in the bill. This suit was brought to enjoin the sale, and the Circuit Court decreed in favor of the complainant.

The provision of the English Statute of Frauds, touching promises made in consideration of marriage, is in force in Georgia.

The promise of Fulton to Thomas N. Hamilton before the marriage was, therefore, void. Browne's Stat. Frauds, 220, 514.

His promise after the marriage was without consideration, and therefore of no validity. The same remark applies to the like promise to James S. Hamilton, the administrator.

The principle of the wife's equity has no application to this case. Wicks v. Clarke, 3 Ed. Ch. 63. The trust-deed was clearly a voluntary conveyance. Lloyd was a prior creditor.

Was the deed good against him?

This question is the core of the controversy between the parties.

Formerly, according to the rule of English jurisprudence, such deeds, as against such creditors, were void. Townsend v. Windham, 2 Ves. 10. The same principle was applied in such cases in this country. Read v. Livingston, 3 J. C. R. 481. It has been overruled in the English courts. Lush v. Wilkinson, 5 Ves. 384; Townsend v. Westocot, 2 Beav. 345; Gale v. Williamson, 8 M. & W. 410; Shares v. Rogers, 3 B. & A. 96; Freeman v. Pope, 5 Ch. App. Cases Eq. 544, 545. It has been also overruled by this court (Hinde's Lessee v. Longworth, 11 Wheat. 213; Kehr v. Smith, 20 Wall. 35) and in most of the States of our Union. The State adjudications to this effect are too numerous to be cited. We shall refer to a few of them. How v. Ward, 4 Me. 195; Moritz v. Hoffman, 35 Ill. 553; Leroy v. Wilmarth, 9 Allen, 382; Miller v. Wilson, 15 Ohio, 108; Young v. White, 25 Miss. 146; Taylor v. Ewbank, 3 Marsh. 329; Salmon v. Bennett, 1 Conn. 525; Worthington v. Shipley, 5 Gill, 449; Townsend v. Maynard, 45 Penn. 199.

Such is also the law of the State whence this case came to this court. Weed v. Davis, 25 Ga. 686. It is a rule of property there; and this court is therefore bound to apply it, in the case in hand, as if we were sitting as a local court in that State. Jud. Act of 1789, sect. 34; Olcott v. Bynum et al., 17 Wall. 44.

The rule as now established is, that prior indebtedness is only presumptive and not conclusive proof of fraud, and this presumption may be explained and rebutted. Fraud is always a question of fact with reference to the intention of the grantor. Where there is no fraud, there is no infirmity in the deed. Every case depends upon its circumstances, and is to be carefully scrutinized. But the vital question is always the good faith of the transaction. There is no other test.

Perhaps no more striking illustration can be found of the application of this principle, and of the opposition its establishment encountered, than is presented in the several cases of Van Wick v. Seward. On the 6th of November, 1817, Seward assigned a judgment to Van Wick, and gave him a guaranty that it was collectible. The judgment was a lien upon lands fairly to be presumed more than sufficient to satisfy it. On the 16th of April, 1818, Seward conveyed all his real estate, consisting of a farm of two hundred acres, to his son. The consideration of the deed was the payment of a specified sum to each of two daughters of the grantor, and an annuity for life of $500 to the grantor himself, who was then aged and infirm. The lands bound by the lien of the judgment were sold under execution, and bought in by Van Wick for a nominal sum. He thereupon sued Seward upon his guaranty, and recovered a judgment, which was docketed on the 13th of September, 1820.

Van Wick thereupon sold under execution and bought in the farm which Seward had conveyed to his son, and brought an action of ejectment to recover possession. The jury found that there was no actual fraud. The Supreme Court, nevertheless, upon the ground that the liability was prior to the deed, following the ruling of Chancellor Kent in Reed v. Livingston, gave judgment for the plaintiff's lessor. Jackson v. Seward, 5 Cow. 67. This judgment, upon grounds chiefly technical, was reversed by the Court of Errors of New York. Seward v. Jackson, 8 Cow. 423. Van Wick thereupon filed a bill in equity to avoid the deed. Chancellor Walworth concurred with the jury in the prior case as to the absence of fraud; and upon that ground, and the further ground of the circumstances of the sale of the property covered by the lien of the judgment, dismissed the bill. Van Wick v. Seward, 6 Paige, 63. The Court of Errors, upon appeal, affirmed this decree by a majority of one. The vote was fourteen to fifteen. Van Wick v. Seward, 18 Wend. 375. So ended the litigation. Perhaps in no case was the subject more elaborately examined. This case was fatal to the old rule. We think the new one more consonant to right and justice, and founded in the better reason.

In Miller v. Wilson, 15 Ohio, 108, the doctrine of this case was expressly affirmed by the Supreme Court of Ohio, though the result upon the facts was in favor of the creditors. The facts of the case in hand are more favorable for the support of the deed than those in Van Wick v. Seward. Here the debtor reserved property worth more than twice and a half the amount of his debts. He expected and intended to pay all he owed. He continued able to do so until he lost his means by the hazards of business. The creditor rested supine for a long time. He did not take his judgment until more than eight years after the second note matured, and more than six years after the execution of the trust-deed. More than seven years had elapsed when the levy was made. The validity of the deed was then challenged for the first time. The creditor quietly looked on until after misfortune had deprived the debtor of the ample means of payment which he had reserved, and now seeks to wrest from the wife the small remnant of property which her husband acquired by means derived wholly from her estate, and which, in part fulfilment of his promise repeatedly made both before and after his marriage, he endeavored to secure to her and her children.

The evidence, as it stands in the record, satisfies us of the honesty of the transaction on his part. The non-payment and the inability to pay are the results, not of fraud, but of accident and misfortune. When Fulton executed the deed, he did what he then had the right to do, and was morally, though not legally, bound to do.

The proofs would not warrant us in holding that the settlement does not rest upon a basis of good faith, or that it is not free from the taint of any dishonest purpose.

The decree of the Circuit Court is affirmed.

title: Lloyd v. Fulton/Opinion of the Court


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Zeller v. Switzer

ERROR to the Supreme Court of the State of Louisiana.

This action was brought upon a bond given to release the steamboat 'Frolic' from a provisional seizure. The defendants answered the petition Nov. 25, 1870, setting up several defences, and, Dec. 5, 1870, filed a peremptory exception. The court below, upon hearing, sustained this exception, and gave judgment in favor of the defendants. The defences set up in the answer were not passed upon.

From this judgment an appeal was taken to the Supreme Court, where a judgment was entered as follows:--

'On appeal from the Second Judicial Court, parish of Jefferson, it is ordered and adjudged that the judgment of the lower court be set aside; that the exception be overruled; that the case be remanded to be proceeded with according to law; and that the appellee pay costs of appeal.'

To reverse this judgment the present writ of error has been prosecuted.

Mr. John A. Grow moved to dismiss the writ of error for want of jurisdiction, the judgment below not being final.

Mr. E. T. Merrick and Mr. G. W. Race, contra.

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Zeller v. Switzer


text: Talk:Zeller v. Switzer

title: Talk:Zeller v. Switzer


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Zeller v. Switzer/Opinion of the Court

We think this motion must be granted. The judgment is one of reversal only, and the case is remanded to be proceeded with according to law. The Supreme Court decided that the defence set forth in the peremptory exception was not good; and that is all that court decided. The case was, therefore, sent back for trial upon the defences set up in the answer, or any other that might be properly presented. If the decision below upon the exception had been correct, such a trial would have been unnecessary. The Supreme Court having decided that it was not correct, the inferior court must now proceed further. This brings the case within our ruling at the present term in Ex parte French, supra, p. 423.

The writ is dismissed.

title: Zeller v. Switzer/Opinion of the Court


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Milwaukee and St. Paul Railway Company v. Apms

ERROR to the Circuit Court of the United States for the District of Iowa.

This action against the railroad company to recover damages for injuries received by Mrs. Arms, by reason of a collision of a train of cars with another train, resulted in a verdict and judgment for $4,000. The company sued out this writ of error.

The bill of exceptions discloses this state of facts: Mrs. Arms, in October, 1870, was a passenger on defendant's train of cars, which, while running at a speed of fourteen or fifteen miles an hour, collided with another train moving in an opposite direction on the same track. The jar occasioned by the collision was light, and more of a push than a shock. The fronts of the two engines were demolished, and a new engine removed the train. This was all the testimony offered by either party as to the character of the collision, and the cause of it; but there was evidence tending to show that Mrs. Arms was thrown from her seat, and sustained the injuries of which she complained. After the evidence had been submitted to the jury, the court gave them the following instruction: 'If you find that the accident was caused by the gross negligence of the defendant's servants controlling the train, you may give to the plaintiffs punitive or exemplary damages.'

Mr. John W. Cary for the plaintiff in error.

The court below erred in its charge to the jury, because there was no testimony which warranted the submission of the question of gross negligence for any purpose.

The undisputed facts raise the simple legal proposition, Does the mere negligence of the defendant's servants, which resulted in the collision, authorize the jury to give punitive or exemplary damages?

It is submitted that the authorities support the negative of this proposition. Philadelphia & Reading R.R. Co. v. Derby, 14 How. 468; Philadelphia, Wilmington, & Baltimore R.R. Co. v. Quipley, 21 id. 202-213; Finney v. Milwaukee & Mississippi R.R. Co., 10 Wis. 388; Craker v. Chicago & North-western R.R. Co., 36 id. 657; Cleghorn v. New York Central & Hudson River R.R. Co., 56 N. Y. 44; Hamilton v. Third Avenue R.R. Co., 53 id. 25; Weed v. Railroad, 17 id. 362; Hagan v. Providence & Worcester R.R. Co., 3 R. I. 88; Ackerson v. Erie R.R. Co., 32 N. J. 254; New Orleans, Jackson, & Great Northern R.R. Co. v. Stathan, 42 Miss. 607; Turner v. North Beach & Mission R.R. Co., 34 Cal. 594; Wardrobe v. California Stage Co., 7 id. 118; Du Laurans v. First Division of St. Paul & Pacific, 15 Minn. 49; Great Western R.R. Co. v. Miller, 19 Mich. 305-315; Pennsylvania Co. v. Kelly, 31 Penn. 372; Heil v. Gendening, 42 id. 493; Hill v. The New Orleans & Opelousas & Great Western R.R. Co., 11 La. Ann. 292; Peoria Bridge Association v. Loomis, 20 Ill. 235; Chicago & Rock Island R.R. Co. v. MeKean, 40 id. 218; Louisville & Portland R.R. Co. v. Smith, 2 Duv. 556; Kentucky Central R.R. Co. v. Dills, 4 Bush, 593.

Mr. C. C. Nourse for the defendants in error.

The petition charges the plaintiff in error with gross negligence and carelessness in suffering the trains to collide. The company offered no evidence to explain the cause of the collision. It is not to be presumed that the cause was known to the plaintiff; but that it was known to the company cannot be doubted, and the absence of testimony tending to excuse or palliate it affords the strongest possible presumption that no excuse or palliating circumstances existed. This presents, therefore, a case, not simply of collision, which is of itself prima facie evidence of gross negligence, but one in which the railroad company, standing dumb in the face of an accusation and charge of gross carelessness and negligence, offers no word of explanation or excuse for the calamity. The jury, therefore, were fully warranted in finding negligence of the grossest character. It remains to be considered, whether in a case of gross carelessness, without palliating circumstances, a railroad company is liable for exemplary or punitive damages.

Gross negligence, where the highest degree of care is required, should be, and from motives of public policy is, regarded as criminal; and the elementary works furnish many instances where it is punished as a crime. Whart. Am. Crim. Law, sect. 1002 et seq.

In no cases is the application of this doctrine more salutary than in those where railway companies are parties.

Recognizing this fact, the legislatures of many of the States have prescribed severe punishment for negligence in the management of trains upon railways.

'Gross negligence,' as used in this connection, has acquired a meaning in the law akin to wantonness. In general, it is defined to be the absence of slight diligence. Bouvier, tit. 'Negligence.' It is utter recklessness. Gross negligence of a railway company in the management of its passenger trains is nothing less than an utter disregard of human life; and public policy requires that it should be so considered.

The liability of railway and other corporations to exemplary damages for gross negligence is a well-settled question. Hopkins v. Atlantic & St. Lawrence R.R. Co., 36 N. H. 9; Taylor v. Railway Co., 48 id. 304, 318; Goddard v. Grand Trunk R.R. Co., 57 Me. 202 (also reported in Am. Law Reg., vol. x. p. 17); Redf. on Railw. 515 et seq.; Shearm. & Redf. on Neg., sect. 600; New Orleans, Jackson, & Great Northern R.R. Co. v. Albritton, 36 Miss. 242; Same v. Bailey, 40 id. 395; V. & J. R.R. Co. v. Patton, 31 id. 156; M. & C. R.R. Co. v. Whitfield, 44 id. 466; ''Louisville, Cinn., & Lex. R.R. Co. v. Mahony, 7 Bush (Ky.), 235; Atlantic & Gt. Western R.R. Co. v. Dunn, 19 Ohio St. 162; Pittsburgh & Ft. Wayne R.R. Co. v. Slusser'', id. 157; 57 Penn. St. 339; Baltimore & Ohio R.R. Co. v. Blocher, 27 Md. 277; Williamson v. The Western Stage Co., 24 Iowa, 171; Frick & Co. v. Coe, 4 G. Greene, 555; Chicago & Rock Island R.R. Co. v. McKean, 40 Ill. 218; C. R. I. & P. R.R. Co. v. Herring, 57 id. 59. See also Spicer v. C. & N. W. R.R. Co., 29 Wis. 580.

The right to recover exemplary damages has been expressly recognized by this court. Day v. Woodworth, 13 How. 363; Philadelphia and Reading R.R. Co. v. Derby, 14 How. 468.

In Varillat v. The New Orleans & Carollton R.R. Co., 10 La. Ann. 88, the court place stress upon the fact that there was no evidence to explain the cause of the collision, and sustain a verdict for exemplary damages.

MR. JUSTICE DAVIS delivered the opinion of the court.


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Milwaukee and St. Paul Railway Company v. Apms/Opinion of the Court

The court doutless assumed, in its instructions to the jury, that the mere collision of two railroad trains is, ipso facto, evidence of gross negligence on the part of the employees of the company, justifying the assessment of exemplary damages; for a collision could not well occur under less aggravated circumstances, or cause slighter injury. Neither train was thrown from the track, and the effect of the collision was only to demolish the fronts of the two locomotives. It did not even produce the 'shock' which usually results from a serious collision. The train on which Mrs. Arms was riding was moving at a very moderate rate of speed; and the other train must have been nearly, if not quite, stationary. There was nothing, therefore, save the fact that a collision happened, upon which to charge negligence upon the company. This was enough to entitle Mrs. Arms to full compensatory damages; but the inquiry is, whether the jury had a right to go farther, and give exemplary damages.

It is undoubtedly true that the allowance of any thing more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle on which damages in civil suits are awarded. But although, as a general rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken, that exemplary damages may in certain cases be assessed. As the question of intention is always material in an action of tort, and as the circumstances which characterize the transaction are, therefore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be considered whether the doctrine of exemplary damages cannot be reconciled with the idea, that compensation alone is the true measure of redress.

But jurists have chosen to place this doctrine on the ground, not that the sufferer is to be recompensed, but that the offender is to be punished; and, although some text-writers and courts have questioned its soundness, it has been accepted as the general rule in England and in most of the States of this country. 1 Redf. on Railw. 576; Sedg. on Measure of Dam., 4th ed., ch. 18 and note, where the cases are collected and reviewed. It has also received the sanction of this court. Discussed and recognized in Day v. Woodworth, 13 How. 371, it was more accurately stated in The Philadelphia, Wilmington, & Baltimore R.R. Company v. Quigley, 21 How. 213. One of the errors assigned was that the Circuit Court did not place any limit on the power of the jury to give exemplary damages, if in their opinion they were called for. Mr. Justice Campbell, who delivered the opinion of the court, said,--

'In Day v. Woodworth this court recognized the power of the jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act: the word implies that the wrong complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations.'

As nothing of this kind, under the evidence, could be imputed to the defendants, the judgment was reversed.

Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.

It is insisted, however, that, where there is 'gross negligence,' the jury can properly give exemplary damages. There are many cases to this effect. The difficulty is, that they do not define the term with any accuracy; and, if it be made the criterion by which to determine the liability of the carrier beyond the limit of indemnity, it would seem that a precise meaning should be given to it. This the courts have been embarrassed in doing, and this court has expressed its disapprobation of these attempts to fix the degrees of negligence by legal definitions. In The Steamboat New World v. King (16 How. 474), Mr. Justice Curtis, in speaking of the three degrees of negligence, says,--

'It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances; to whose influence the courts have been forced to yield, until there are so many real exceptions, that the rules themselves can scarcely be said to have a general operation. If the law furnishes no definition of the terms 'gross negligence' or 'ordinary negligence' which can be applied in practice, but leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.'

Some of the highest English courts have come to the conclusion that there is no intelligible distinction between ordinary and gross negligence. Redf. on Car., sect. 376. Lord Cranworth, in Wilson v. Brett (11 M. & W. 113), said that gross negligence is ordinary negligence with a vituperative epithet; and the Exchequer Chamber took the same view of the subject. Beal v. South Devon Railway Co., 3 H. & C. 327. In the Common Pleas, Grill v. General Iron Screw Collier Co. (Law Reps., C. P. 1, 1865-66) was heard on appeal. One of the points raised was the supposed misdirection of the Lord Chief Justice who tried the case, because he had made no distinction between gross and ordinary negligence. Justice Willes, in deciding the point, after stating his agreement with the dictum of Lord Cranworth, said,--

'Confusion has arisen from regarding 'negligence' as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. 'Gross' is a word of description, and not of definition; and it would have been only introducing a source of confusion to use the expression 'gross negligence' instead of the equivalent,-a want of due care and skill in navigating the vessel, which was again and again used by the Lord Chief Justice in his summing up.'

'Gross negligence' is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term 'ordinary negligence;' but, after all, it means the absence of the care that was necessary under the circumstances. In this sense the collision in controversy was the result of gross negligence, because the employees of the company did not use the care that was required to avoid the accident. But the absence of this care, whether called gross or ordinary negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this, there must have been some wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train; and the court, therefore, misdirected the jury.

For this reason the judgment is reversed, and a new trial ordered.

NOTE.-In Western Union Telegraph Company v. Eyser, in error to the Supreme Court of the Territory of Colorado, it appears from the evidence embodied in the bill of exceptions that the accident which caused the injury to the defendant in error occurred at the corner of F and Blake Streets, in Denver, Col., at which point the agents of the plaintiff in error were engaged in erecting the wire which they had stretched across Blake Street, some two feet above the ground; that Eyser rode down that street on horseback, and, when near the wire, one of the bystanders called to him, warning him, but that the horse, having become entangled in the wire, fell to the ground, thereby causing the injuries complained of.

It does not appear that the plaintiff in error adopted any special means of warning; but the person in charge of the work testifies that he instructed the workmen 'to keep people off the wire.'

Upon the question of exemplary damages, the court instructed the jury as follows:--

'If the defendant's agents and servants, acting within the scope of their authority from defendant, were engaged in constructing a telegraph line in the city of Denver, and in such construction stretched a wire across one of the public and frequented streets of said city during the hours of the day when such streets are wont to be frequented, and suffered such wire to remain stretched across said street, and elevated such distance above the ground as to obstruct or entangle the feet of a horse passing upon said street for the space of one half-minute to a longer period; and if, unless such wire was of such size and character as to be easily seen by persons approaching at a moderate speed, defendant's agents omitted to station flag-sentinels or other sufficient means of warning to warn or notify passers-by of the place where such wire was stretched; or if defendant's agents did station such sentinels, and they failed to give warning to plaintiff,-then the defendant was guilty of negligence; and if from such negligence the injury complained of occurred, without culpable negligence on the part of plaintiff contributing thereto, then the jury ought to find for the plaintiff, and, in fixing the plaintiff's damages, should compensate the plaintiff not alone for his actual loss in the loss of time during his confinement or disability, if any, resulting from the alleged accident, but may award exemplary damages proportioned to the nature and extent or character of the injury and all circumstances of aggravation or extenuation attending the alleged negligence of defendant: and the extent of such damages is to be measured by the sound discretion of the jury in view of all the circumstances; but such damages are not to exceed the damages laid in the declaration,-ten thousand dollars ($10,000).'

Mr. J. Hubley Ashton for the plaintiff in error. Mr. J. W. Denver, contra.

MR. JUSTICE DAVIS, in delivering the opinion of the court, remarked that the decision rendered in Milwaukee & St. Paul Railway Company v. Arms et al., supra, controlled this case. In no view of the evidence was the court below justified in instructing the jury that exemplary damages could be recovered. The omission to station flag-sentinels, or to give some other proper warning, while the men were engaged in putting up the wire, was an act of negligence, entitling the plaintiff to compensatory damages. But there was nothing to authorize the jury to consider this omission as wilful: on the contrary, the evidence rebuts every presumption that there was any intentional wrong.

Judgment reversed.


text: Talk:Milwaukee and St. Paul Railway Company v. Apms/Opinion of the Court