Southern Pac. Co. v. Cavin

ROSS, Circuit Judge, after stating the case as above, delivered the opinion of the court. The principal points made on behalf of the plaintiff in error relate to the giving and the refusal to give, by the court below, certain instructions to the jury. The one most urgently insisted_ on is the alleged error of the court in instructing the jury, as it did, that “the derailment of the car in which plaintiff was riding at the time of the wreck in question, is prima facie evidence of defendant's negligence, and the plaintiff being himself in the exercise of due care, the burden is upon defendant to prove that it was not guilty of negligence, and that its whole duty was performed to guard against and prevent derailment; and the burden is upon it to prove that such derailment was unavoidable by the exercise of the foresight, vigilance, and diligence of a very cautious, prudent, and vigilant person.” In the same connection the plaintiff in error requested, and the court below refused to give to the jury, this instruction: “In eases like tbe present a prima facie ease is establisbecl when the plaintiff shows that he was injured while being carried as a passenger by the defendant, and the injury was caused by the manner in which defendant used or directed the instrumentality under its control. This fact, when established by evidence. but makes out a presumptive case on'the issue of negligence, and is only satisfactory if uncontradicted. It is not intended by this presumption, nor this instruction, to shift the burden of proof of the whole case to defendant. It means that upon a showing of these facts, plaintiff has established negligence on defendant's part, and defendant must meet this proof by showing that the injury was -without any negligence on its part.” The action of the court in each particular was duly excepted to by the plaintiff in error, and is duly assigned for error. It is insisted by counsel that the instruction given by the court imposed upon the plaintiff in error a greater burden than the law au [351] thorizes, in that it cast upon the plaintiff in error the burden of proving that it was not guilty of negligence “with reference to the whole case, and not with reference to the particular act of derailment,” and that it does not properly distinguish between the burden of proof and the weight of evidence. Counsel rely, in support, of their contention, particularly upon the cases of Patterson v. S. F. & S. M. Elec. Ry. Co. (Cal. Sup.) 81 Pac. 531, and Scott v. Wood, 81 Cal. 398, 22 Pac. 871. In the latter case the court was considering the general rule prevailing in ordinary civil actions. Whether there ■ is an_v conflict or inconsistency between the Patterson Case and the subsequent one in the same court of Cody v. Market Street Ry. Co. (Cal. Sup.) 82 Pac. 666, and the prior cases of Green v. Pacific Lumber Co., 130 Cal. 435, 440, 62 Pac. 747; Osgood v. Los Angeles Traction Co., 137 Cal. 280, 70 Pac. 169; and Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175, we need not consider; for whatever the rule may be in the state courts, we are, in cases like the present, to be governed and controlled by the law as declared by the Supreme Court of the United States. “Since the decisions in Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115, and Railroad Company v. Pollard, 22 Wall. 341, 22 L. Ed. 877,” said that court in Gleason v. Virginia Midland Ry. Co., 110 U. S. 435, 443, 11 Sup. Ct. 859, 862, 35 L. Ed. 458: “It lias been settled law in tliis court iliat the happening oí an injurious accident is in passenger cases prima facie evidence o£ negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance; and was followed at the present term In Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270.” The reason for the rule is that in the very nature of things the passenger rarely, if ever, can know the cause or causes of the injury, while the carrier has the means at its command to show the facts, and, if it is free from blame, to exonerate itself. Whitney v. Railway Co., 102 Fed. 850, 852, 43 C. C. A. 19, 50 L. R. A. 615; Denver & R. G. Ry. Co. v. Fotheringham (Colo. App.) 68 Pac. 978. The second of the principal contentions on the part of the plaintiff in error is, we think, equally without merit. It grows out of the following portion of the charge of the court: “You are further instructed that if you find from the evidence that the plaintiff received the injuries complained of by reason of the defendant’s negligence alleged in the complaint, and that at (lie time of the reception of such injuries the plaintiff had been suffering from some disease, and further find that such injuries hastened the development of the disease, and that thereby, without the fault of the plaintiff, his present condition, whatever you may find that to be, has resulted from such injury, then I instruct you that the plaintiff is entitled to recover such damages as yon may determine he has sustained from the injury.” By this instruction the jury was clearly limited in the awarding of damages, to such injuries as they should find the plaintiff sustained by reason of the defendant's negligence; which is in accordance with the rule laid down by Sutherland in his work on Damages [352] (3d Ed.) in section 1244, and the other authorities cited by counsel for the plaintiff in error. The contention that the defendant was taken by surprise by the allegation contained in the complaint, to the effect that Cavin was, at the time of the accident a well and able-bodied man, is negatived by the defendant’s cross-examination of the plaintiff Cavin, and by its examination of the witness W. B. Coffey. We have examined the charge of the court below with care, and are of opinion that it very clearly and fairly gave the jury the law applicable to the case, and left the facts of it for their determination. What was said by the Supreme Court in the case of Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 75, 12 Sup. Ct. 356, 361, 36 L. Ed. 71, answers two of the other points of the plaintiff in error: “Whether the verdict was excessive, is not our province to determine on this writ of error. The correction of that error, if there were any, lay with the court below upon a motion for a new trial, the granting or refusal of which is not assignable for error here. As stated by us in Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 11 Sup. 720, 35 L. Ed. 371: ‘It may be that if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error. In such a case we are confined to the consideration of exceptions, taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge. We have no concern with questions of fact, or tlie weight to be given to the evidence which was properly admitted.’ ” That the court below did not err in sustaining the objection to the admission in evidence of the article published in the Lovelocks Tribune, March 2, 1901, was held by-this court in the case of Southern Pacific Co. v. Schuyler, 135 Fed. 1015, 68 C. C. A. 409, and that Cavin, while serving as a United States mail clerk on board the defendant’s train, is to be regarded as^a passenger, was held by this court when the present case was formerly under consideration. Cavin v. Southern Pacific Co. (C. C. A.) 136 Fed. 592. But one other point made by counsel for the plaintiff in error need, we think, be specially mentioned, although we have given to all of them careful consideration, and that relates to the testimony of the witness Meals, who, having testified that he was a life insurance agent, and had been such for 11 or 12 years, and was familiar with the standard life table used by life insurance companies, and that the American experience tables are the ones most commonly used in this country, was permitted, against the objection of the plaintiff in error, to testify that, according to those tables, Cavin’s life expectancy was 29.62 years. In this there was no error. Shover v. Wyrick (Ind. App.) 30 N. E. 207; Chicago, I. & L. Ry. Co. v. Neff (Ind. App.) 56 N. E. 927. The judgment is affirmed.