Southern Pac. Co. v. Schuyler

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is assigned as error, first, that the court sustained an objection to the admission in evidence of a written copy of a newspaper article which had been published in the Lovelock Tribune on March 2, 1901. A witness had testified on behalf of the plaintiff in error concerning the cloud-burst which occurred on February 16th near Lovelock, some 25 miles from the place of the accident. On his cross-examination he stated, whether voluntarily or in answer to a question does not appear from the bill of exceptions, that the editor of the newspaper came and interviewed him about it, and afterwards published an account of the interview. On his redirect examination the plaintiff in error offered a written copy of the published interview. There was no error in its exclusion. It was not competent for any purpose, nor was it admissible under any rule of evidence. It is claimed that it was material evidence affecting the credibility of the witness’ testimony. It is too clear to require discussion, however, that it was not competent to fortify the testimony of the witness by showing that a newspaper had 'published an interview with him which substantially corroborated the oral testimony which he gave in court. The remaining assignments of error are equally devoid of merit. They relate to the charge to the jury. The court gave the jury full instructions upon all features of the case. Error is assigned to one portion of the charge, and to the refusal of the court to give certain instructions which were requested. A portion of one of the instructions so requested is quoted in the brief of the plaintiff in error as follows: “Tbe law does not require from a railroad company the utmost degree of care which the human mind is capable of imagining. It simply requires that the highest degree of practicable care should be used which is consistent with the mode of transportation employed. While railroad companies are to use all reasonable precautions against injuries to passengers, these precautions are to be measured by those in known use in the same business which have been shown by experience to be efficacious. The railroad company is required to use the best precautions in known practical use to secure the safety of its passengers, but it is not required to employ every possible preventive which the highest scientific skill might suggest, nor is it required to adopt any mere speculative and untried experiment.” [1018] This requested instruction, which is indeed well sustained by authority, was properly denied, for the reason that it had no relation to the case. Such an instruction applies to cases involving the use of machinery, devices, and improvements in railroad equipment. In lieu of the requested instruction, the court charged the jury that it was the duty of the carrier to keep its track in a safe condition for the passage of trains under all known conditions, and to employ such agents and' laborers as would secure that result under the usual and known circumstances attending the’situation, and directed them to find a verdict for the defendant if they found that it used the care and vigilance of a very prudent and cautious person in the situation, and in view of all' the circumstances attending the derailment of the train. Another instruction was requested involving the presentation of the rule concerning the preponderance of evidence in such a case. But the court in that connection instructed the jury that the law imposed upon the defendant in error “the burden and necessity of showing by preponderance of evidence that it was the negligence of the defendant railroad company, and not something else, which caused the alleged injuries.” Another instruction requested by the plaintiff in error was the following: “If the jury should find from the evidence that the derailment was caused by an unprecedented flood at a particular spot on the track, and that such flood was not the result of any human act or agency, but was the result of natural forces operating in an unforeseen and inevitable way, such as is sometimes named ‘an act of God,’ without the intervention of any breach of duty on the part of the defendant, I instruct you that, in providing against any such natural happening or act of God, the railroad company is not held to the utmost and extreme care of a very cautious person, but sufficiently discharges its duty in the premises if in this behalf it exercises ordinary care; and diligence.” As to the proposition involved in the first part of this requested instruction, the court charged the jury thus: “The evidence tends to show that this flood, and the washout in the railroad embankment resulting therefrom at this point, was an unforeseen occurrence. No flood and washout at this particular place had occurred during the many years the railroad had been built. If you believe this evidence—that the flood and washout were unexpected, and that no experience of the officers and agents of the railroad company had warned them of the likelihood of such an occurrence—if you believe this testimony, as I have said, you may determine that the flood and washout were caused by what the law terms ‘an act of God.’ ” But as to the latter portion of the requested instruction, the plaintiff in error cites and relies upon Gillespie v. St. L. K. C. & N. Ry. Co., 6 Mo. App. 554, in which the court announced the rule that, to give “to the carrier the practical benefit which the law allows him, he must be held, in preventing or averting the effect of the act of God, only to such foresight and care as an ordinarily prudent person or company in the same business would use under all the circumstances in the case.” It is true that a carrier is not liable for injury from a vis major or an act of God, if it be uncombined with neglect in the employment of human agency. The party claiming the benefit and application of this exemption must be without fault on his part. Read v. Spaulding, 30 [1019] N. Y. 630, 86 Am. Dec. 426; Odd Fellows’ M. Aid Ass’n v. James, 63 Cal. 598, 607, 49 Am. Rep. 107; Dibble & Seligman v. Morgan, 1 Woods, 406, Fed. Cas. No. 3,881. The court, we think, fully complied with the rule applicable to such a case in giving the following-instruction : “But if, on the other hand, the defendant could not discover the condition of this embankment by the exercise of such diligence and prudence as skillful men engaged in that kind of business might fairly be expected to use under like circumstances, it would not be chargeable with negligence, and: would not be liable in this case.” It is assigned as error that the court charged the jury as follows : “It is undoubtedly the duty of the carrier to keep its tracks in. safe condition for the passage of trains under all known conditions, and to employ such agents and laborers as would secure that result under the usual and known circumstances attending the situation.” But the court also said to the jury: “The duty of the carrier is fulfilled when it uses the legal degree of care in the premises, no matter whether the safety be the result or not” The court thus properly charged the jury on the law of the case when applied to the question of the right of a passenger to recover damages for personal injuries sustained under the circumstances of the present case. We find no error in any of the instructions given,, or in refusing those that were requested. The judgment of the Circuit Court is affirmed.