GULF, O. &; S. F. R, CO. 'V. WASHINGTON.
347
GULF, C. & S. F. ,
t1. WASHINGTON. "
(Circuit Court of Appeals, Eighth Circuit. February 1, 1&92.
L
INDIAN TERRITORy-.TURISDICTION OF FEDERAL COURT-AMOUNT IN CONTROVERSY.'
In the I,ndian Territo,1'Y', a complaint a,llegin g simply that defendan,t, while per. atingits railway through plaintiff's pasture, negligently killed his stock, and that the stock was killed solely through defendant's inexcusable neglect. is suflicient to w,itbstBnd a general demurrer, since, under Mansf. Dig., Ark. S 5065, (in force ill the temtory,) a complaint will be treated as alleging every fe.ct which can be im· plied from its avermentB by the most liberal intendment. 8. Snm. In an ,action for the killing of Btock, where plaintUf re11ell upon the failure of the railroad company to fence ita track according to a contl'e.ct, that fact must be alleged in the complaint. 0,
t.
Under Act Congo March'l, 1889, § 1l,1JroVidingthat,the U*Jted States courts in the Indian Territory shall have jurisdiction in civil cases value of the thing in controversy or damages 9r money claimed shall amount to'$l00 or more," such courts have jurisdiction of an action for killing stock when the total Slnountclaime4 eX\l6eds $100, though the value of ee.ch,aniinal is less than that sum. COMPANIES-KILLING STOCK-PLEADING.
SAME-FENCING TRACK,
A contr!LCt by a railroOO company to fence itB track through certain lands imposes upon it the same dutiell and liabilitiell with respect to the killing of lltock all would be imposed by a statute requiring it to fence.
&. SAME-DuTY OP COMPANY.
In the Indian Territory, where neither the owners of animals nor railroad comlIanies are required to fence, it is the duty of engineers to use reasonable care to diBcover Btook upon the tre.cll:, and to avoid injUring them when discovered. .The.fe.ct that stock is in the Indian Territory in violation of law in no way affects the dtity of a railroad company to exercise care to avoid injuring them by the running of.i:ts trains.
.. SAMllI·
7.
SAME-COMPETENCY OJ' WITNBSS.
A witnesB familiar with a railroad tre.ck at a pIe.ce where cattle were killed is competent to testify as to the distance at whioh cattle on the traok could be seen by tbe engineer. Suoh testimony is not objectionable as being the statement of an opinion. It is competent to prOVl;l by oiroumstantial evidence that cattle found deOO along a railway track were killed by the company'B trains. In an e.ctlon againBt a railroad oompany for killing Btook It is within the disoretion of the court to refuse to require a separate 1lnding as to each animal BUed for.
S. 0.
SAME-CIRCUMSTANTIAL EvIDBNCB.
SAME-8PBCIAL FINDINGS.
10. IMPANBLING .TURy-iNDIAN TERRITORY.
lL 12.
ApPEAL-BILL OP EXCEPTIONS.
NEGLIGENOE-PLEADING.
18.
PLEADING-WAIVER.
n Error to the United States Court in the Indian Tenitory. Action jby J. R. Washington against the Gulf, Colorado & Santa Fe Railroad Company to recover damages for the killing of stock. Verdict And judgment for plaintiff. Defendant.brings error. Reversed.
348'
FEDERAL REPO,RT)l;R, vol. 49. (J.
L. Jackson, for plaintiff in errOi. " Before CALDWELL, Circuit Judge, and SHrUAS and THAYER, District Judges.' . B. S. Merrill, for defendant in error.
E. D. Kenna, J. W. Terry, and
CALDWELL, Circuit Judge. This was an action commenced in the United States court for the third judicial division of the Indian Territory by the !plaintiff against the Gulf, Colorado & Santa Fe Railway Company for the recovery of damages for stock alleged to have been injured and killed :by the negligent operation of the defendant's locomotive engines The plaintiff recovered judgment for $375.72, and the defendant sued out this writ of error. The SUmmons was in proper fOfm, and the court rightly overruled the motion to quash''it, because it did not state the nature and amount of the plaintiff's demand. Mansf. Dig. t1968j Id. 1, p. 1251j Rauway 00: v.James, 48 Fed. .. Rep. 148: was a demurrer to the complaint upon two grounds: Firat, that the (Jan.-thad no jurisdiction of the subject-matter of the suit; and, second, that it did not state sufficient facts to constitute a cause of action. The damages laid in the complaint are $468 for injuring and killing sev.eral head ofstock at different times. The complaint states, the value of each head of stock killed,and the value of each one is less than $100. The, firstaptof .congress the civil jurisdiction of. the court in: the Indian Territory provides that the court shall have·jurisdiction in civil cases" when the value of the thing in controversy or damages or money claimed shall amount to ,one hUIj,dred dollars or more." Act Marcb '',f;.18,89, (25 U. S. p. 783, c. 333, §6.) When the aggregate 'of the damages or money claimed amounts to $100, the ??urt sectio,n. The fact that, each ani.. mal for w'hlCh the was worth less than $100 makes no to that sum. difference, if the damages claimed for all of them the jurisdiction ortha court-Act May 2, 1890, (26 St. U: S. p. 94, c. 182, § 29,) -declares that courtshs111hltve "jurisdiction in all civil cases in the Indian Terriwhich do not affect this question., Whether this , tory," with act by implication the limitation on the jurisdiction contained in we do not decide., , The complaintllllegesthat the defendant, while operMing its line of tpe plaintiff's pasture, negligently killed the stock sued for, and'that t11e stock was killed solely through the inexcusable negligence o( thedefendant. It is said this statement of the cause of action is 'substance, bi;lcause it merely states that the cattle were killed by the defendant while operating its road through the plaintiff's pasture. and does not state how the defendant killed them,whether irwakby'running its· enginesand·trains over or against them, Of irisom& other·maimer,-and that it does not state in what the alleged negligen,ce of-ihe defendant <Jollsisted. The complaint is inartificially drawn. ,1 But,againstthe assault ofa general demurrer it is good llnder
GULF, C,&;,
s..
F. R. CO. V. WASHINGTON.
349
the Code in force in that terrjtory. Under that Code a complaint is good on demurrer if it contains the substantial elements of a cause of action, however ,indefinitely or inartificially they may be stated. Indefiniteness' or ,uncertainty of statements in a complaint which, when construed in the most liberal manner, states the substance of a, cause of Mtion, is not a ground of demurrer, but is a defect to be corrected by motion for a more specific statement. The complaint will be treated as alleging by implication every fact which can be implied from its averments by the most liberal intendment. Mansf. Dig. § 5065; Fordyce v. MerriU,49 Ark. 277, 5 S. W. Rep. 329; Green v. Mayor,8 Abb. Pro 27; Meyer V. Railway 00., 7 N. Y. St. Rep. 245. It is very well settled that, a general allegation of negligence, without stating the particular acts which constituted the negligence, is good against a general demurrer, Harper v.&ilrond 00., 36 Fed. Rep. 102; Railroad 00. v. Cremshaw, 65 Ala. 566; CiJ,y of Anderson v. East, 117 Ind. 126, 19 N. E. Rep. 726; Scott v. Hogan; 72 Iowa, 614, 34 N. Rep. 444; McFadden V. Railway Co., 92 MQ. 343, 4 S. W. Rep. 689. Moreover, it is the settled doctrine, of the supreme court of the United States that filing a plea to the merits after a demurrer is overruled is a waiver of the demurrer. $tanton V. Embry, \)3 U. S. 548; CampbeU V. Wilcox, 10 Wall. 421. And this is the rule under the Code of Arkansas, in force in the Indian Ter:dtory.. Jones v. Terry, 43 Ark. 230. The cOllrt refUsed the request of the defendant to have the jury drawn and, impaneled ,in ,the m<)de required by sections 4013-4015 of Mansfield's Digest. This was error. Railway Co. v. James, 48 Fed. Rep.
148. . , A ,witnesafamiliarwith·the track of the defendant's road at the place
where the cattle were killed was asked how far cattle on the track could be seen in each direction by the engineer or other person on the track from :tbe point where they were killed. The objection to this question -that it. called for the opinion of the witness-was rightly The quelStion related to afact about which anyone acquainted witq ,the llndpossessed of ordinary intelligence and eye-sight, might giv" practice in the courts for :his opinion orjudgment. ',It is witnesses to, be asked sinlilar questions, such as the size of a room, the width of a street; the distance between two objects, and the distance a. given object can be seen from a particular stand-point. In these and like cases it .i,s competent for a witness acquainted with the places or localities to state his best judgment. based on his personal knowledge Ilond observation, of the localities and plac,es. These are matters of knowledge, about which experts have no. advantage over men; alld to h,old that a witness could not testify to the distance between objects. or the distance a given object could be seen from a par,ticularstand-point familiar to him, unless he had actually measured the distance, would entail intolerable expense and delay in the administraJion of:tl;le la,w, and frequeQtJyresult in a total failure of criminal as
FEDERAL REr'ORTEIt,
voL 49.
: !twas not error to refuse t()instruct the jury toretl'lrn a verdict for the defendant upon the ground that there was not sufficient evidence to 1ltlpport the plaintiff's action. TherE! 'wlisabundant evidence to warrant the Jury in finding' a verdictfdr some of theetOck killed. Besides, there was evidenee tending to show that the defendant had agreed to felloe its track through the plaintiff's pasture, and that the cattle strayed obthetrack and were, killed by reason of the'neglectof the defendant 1;0 fenoe its track accOrding to its agreement. Nor was it error for the oo11rtto tefuse to charge the jury to return a verdict for the defendant ,as wall stock "the witnesses did not see killed." One who kills anbtherin secret, when rio eye seee the deadly potion administered or the fatill'blow struck, may be convicted of murder, and hanged on circumstahtial evidence; and no reason is perceived why the same character of e\7i'dence may not be sufficient to prove that a railroad company killed a coW' .dr' a mule; and that thekiIling was the result of the company's negligenoe. Some of the cattle sued for found, very soon after they were killed,' on or near the railroad track,andthe injuries and ma"ks of violence appearing upon their bodies Were such as would be inflicted 'by coming in contaci with, a moving or train of cars. A jury mip;ht well find from these circumstances thl1t the cattle were killed by the defendant's trains. Whether the killing occurred through the negligence ot the railroad company is not so easily proved; but that fact, like any dther, may be proved by circumstances. It is competent for the plaintiff in such cases to show that the track where the cattle were killedis'atraight, and free from any obstruction which would obscure the view of the engineer of a train going in either direction, and that by the exerCise oiordinary care and the engineer could have seen cattle 011 the track, not only in daylight, but, by the aid of the headlight of the locomotive, in the night-time also,' in time to have a\'oided the killing. .These and any other circumstallces calculated to throw light on the issue may be considered by the jury. It is the province of the jury to say whether the circumstances in any given case are sufficient to warrant a finding that the cattle which no witness saw killed were killed through the negligence of the railroad company, when there is any evidence tending to show that fact. It does not appear, as shown elsewhere in the opinion, that all the testimony in this case that was heard by the jury is before us, and we can therefore form no opinion as to its sufficiency; and the presumption that the verdict was founded on sufficient 'evidence must prevail. -' It waS not error to refuse to instruct the jury that they must make a special finding as to each animal sued for. That was a matter within the discretion of the court, and its refusal to give such a direction cannot be assigned for error. But two exceptions are argued to the charge of the court, and these we will consider. The court instructed the jury tbat"The question of DE'gligence is a question to be determined by all the facts and circumstances introduced before ,rOll. In cases of negllgem!e. each case
GULF, ,Q. &;'8. F. R. CO. V WASHINGTON.
351
should be determined upon its own pecnliar circumstances. The railroad company owes it to the owner of stock that the agents or engineers operating the train or trains shall use care, wheQ stock is discovered by him, to prevent injury to it; yet thenl'iaan obligation due to others from railroad companies in running their trains, whichia that the agents or engineers shall keep a lookout for stock on the track; and the jury will determine from this whether the agents or engineers have used ordinary or reasonable care to prevent ini uring these animalS. II Thia instruction was probably suggested by the opinion of the court in Railroad Co. v. Kerr, 52 Ark. 162, 12 S. W. Rep. 329. It is there said: "The extent of the duty !Which a railroad company owes to the owner of stock upon its track is that the engineer in charge of the train at the time shall use ordinary or reasonable care, after the stock is discovered by him, to prevent. injury to it; and this negatives the idea that the engineer is ·bound to kt'ep a lookout for stock. ** * There!s an obligation due to othera from railroad companies to preserve a strict lookout while running their trains; and,8s' the agents of the company, in the absence of circumstancell leading to a different concIus.ion, are presumed to keep such lookout. it is a fair inference of fact for th.e jury that a watchful agent will see stock on or near the track. and that they will then dl!termine whether he has used ordi. nary or. reaa9'tlable care to "prevent injury to it.'" The court does not state who the" othera" are to whom the company owes the duty to ,keep "a strict lookout while running its trains," and of which duty the owners of stock may avail themselves by an inference of fact t9be drawn,by tqejury. There is no intimation of the relation those other persons austain to the company to whom it owes this special duty. and passenger trains are doubtlesa within the rule enunciated i but are freight, gravel, or construction trains, or a Bingle loco. motive? In our judgment, a more satisfactory statement of the law on this point is found in other decisions of that court. In a case not referred to in the opinion last cited the court said: .. Althopgh the mule was wrongfully on the defendant's track when he-received the injury of which. he died, and was not seen by the engineer, yet if, by the ex.ercise of <lrdinary care and watchfulness, he might have seen him in tiDie to have averted thedsnger, the defendant was liable for the injury that rt'sulte<t from the accident. It was certainly the duty of the engineer to keep a constant and careful lookout for stock which might be upon the track." Railway 00. v. Finle'Jj, 37 Ark. 562-570. In a later case the court said: "Railway companies are not insurers of the lives and safety of all the domestic animals in the cOl1ntrythrough which their lines run. Ordinary care in the management of their trains is the measure of Vigilance whieh the taw exacts of them in their relations. to the owners of such animals; and this means practically thi\t the company's servants are to use aU reasonable efforts to a void barming animal after it is discovered. or might. by proper watchfu1n.esfi. have beendiacovered, to be on or near the track." - Railway v. Holland,40 Ark. 836. .
It is a Ir)atter of common knowledge that the Indian Territory iSB grazing country, where in great numbers run at large. In the Indian TerritorY the owners of cattle are not bound to fence them up,
352
:', FEDERAL REPbRTER, vol. 49.,
and, 'the railroad company is nbt bound to fence thEmi out. 'Arailroacl in a country where these conditions obtain, withou,t,e:xercising fea,$onable care to prevent hljury to' st9ck, would become an engine of destruction to animal life. The railroad company knows that aniinalsare liable to be found upon its track at any place and at all times of day, and that, unless reasonable Care is exercised to 'disc0ver them, and the same degree of care used to prevent injury to them after they are discovered, they will 'probably, De injured or killed by the powerful engines it runs upon its road. ,Under these conditions it cannot be maintaIned that the company is not bound to use any care to discover cattle on its track. We cannot yield, our assent to the; doctrine that an ellgineerwho refuses to look, or is blind or near-sighted; may run his engine over and kill, domestic animals ad libitum, and without imposliability on ,pis company because he did not see them. the ,duty of the company,' under the conditions w.PJch exist in this territoi'y,lto exercise ordinary care and watchfulness to"discover domestic animals upon if;jl track, and, when they arediMovered. to lise reaefforts to avoid harming them. And this is its duty indepeJi'dehtly of ariy higher duty it ·may owe to others. Ther:e is no rela-:tion between the duty it owes to its passengers and the duty it owes t6 the ()wl1ers of stock bnits track, alld the duty it owes to the former canOot be made the measure of its duty to the latter, either directly ot by c i r c t i i r i l o c u t i o n . ' i The form of the instruction is It :is framed on the e.rr6neoussupposition that the railway cOlnpany i8not required to use ordinary care and watchfulness to discover cattle on 'the track, butJin reality, it imposes this duty by indirection. by telling the jurytbat the company owes a duty to "others * * * to preserve a, strict lookout while running" its trains, and that, as it is "presUlli.ed tb keep such lookout, it is a fair inference of fact for the jury that a watchful agent will see stock <;>0 or near the track." But as the meaSure of the duty the company owed to others, as defined in the instruction, was no g:reater than the duty it owed the plaintiff in the parHcular it was not erronepU8j 1:>ut only a roundabout way of stati,ug the law. . i rfhe other instruction; the exception to which is insisted upon in argument, was to the effect that j if the defendant agreed to fence its track though the plaintiff's pasture, and did notdo SQ, and the cattle l:itrayed 90; the track and were killed by the defendant's engines ortrains ,by reason of ,the neglect of tile defendant to fence itfi road, then the killing oUhe cattle was negligence, on the part of the defendant. If the law had imposed on the defendant the duty to fence its road, and it had not done so, and the ,cattle had strayed upon the track and been killed a result of the negligence of the company to perform its legal duty in this regard, it would have been liable for the cattle killed, without reference to. the question of negligence in the operation of its trains! And when a railroad company enters into a contract with a land'-ow'ner to 'fence its track through his premises for the protection of his stock; such a contraet is as obligatory on ,the railroad compllny 'statute
'5
as a
GULF, C; & 8. F. R. CO. V. WASHINGTON.
353
requiring it to fence its track; and, so far as relates to the question of the liability of the railroad company for stock killed by reason of its preach of such duty, it is precisely what it is when the obligation to fence is imposed by statute. The court told 'the jury that if they found the defendant had made such a contract, and that the cattle were killed by the defendant as the result of its breach of that duty, then the killing of the animals was negligence. It might have told them that in such case the defendant was liable for the cattle killed without reference to the question of negligence in the management and operation of its engines or trains which did the killing. There was no objection to the admission of the evidence to prove this alleged contract. The only question was its sufficiency, and that was properly left to the jury. Whether it was sufficient to warrant a verdict on this issue for the plaintiff this court cannot say, because the "substance" only of the testimony is embraced in the bill pf exceptions, and we would not be willing to disturb the verdict of the jury, or hold that there was not sufficient evidence to support any given .issue in a cause, upon the statement contained in the bill of exceptions in this case,that the witnesses testified in "substance" to what is therein stated. The of thejury and of this court might differ widely from that of the parties or the court below as to what was the "substance" of the witnesses' testimony. The parties and the court may and should omit from the bill of exceptions all irrelevant and redundant matter; and the testimony of witnesses may be stated in a narrative form when 'it was delivered in answer to questions; but what is sent up as the evidence in the case must be certified to be all the evidence, and not the "substance" of it, before this court can be asked to pass on the question of its sufficiency to support the verdict. As the case must go back for a new trial, we deem it proper to say that if the plaintiff relies, as a ground of recovery. upon the fact that the cattle were killed by reason of the neglect of the defendant to fence its track, according to its contract, we think that. under the Code in force in the territory that fact should be stated in the complaint. He may, of course, allege as grounds of recovery both negligence in the management and operation of the defendant's trains and its neglect to fence its track according to its contract, as a result of which the cattle were killed, and as many other grounds of recovery as he may have. If an objection had been interposed to the introduction of testimony on this point it must have been sustained, unless the plaintiff had amended his complaint. It is assigned for error that the court refused to give certain instructions to the jury asked by the defendant. The first, fourth, sixth, and seventh prayers of the defendant were embraced in the charge in chief, and the court did right in not incumbering the record and confusing the jury by repeating them. By the second, third, and fifth prayers the court was asked to charge the jury as follows: "The court instructs the jury that the .engineers and servants in charge of defendant's railway trains are not bound to keep a lookout for stock upon or Dear the defendant's railway track, and that the extent of the duties which a v.49F.no.5-23
354
J'EDERAL
vol. 49.
company the owner,<>f stock upon its track and right of waf I.Bthat the engineer in charge of the train shall use ordinary or reasonable care, after the stock is discovered by Bucb engineer. to prevent injury to such stock." We have seen that this is not a full and accurate expression of the law on this subject. . The eighth prayer asked the court to charge the jury as follows: "The court instructs the jury that the stock of the plaintiff in this caSe, mentioned in plaintiff's complaint. were in the Indian Territory in violation of law, and thedt'feudant is not liable to plaintiff for any of such cattle lUI were killed by defendant's engiIVlers and trains only because of gross negligence on the part of the defendant's servants in killing such stock." Whether the cattle were in the Indian Terntory in violation of law was a mixed question of law and facti and, if its consideration was deemed material to the case, its determination should have been left to the jury, under proper instructions as to the iaw. But if the cattle were in the territory in violation of law, that was no concern of the defendant, and gives it no right to exercise any less care to prevent injury to them than it was bound to exercise to prevent injury to cattle rightfully in the territory. The judgment is reversed, and the cause remanded, with directions to grant a new trial.
Gt7LP, <;I. & S. F.R. Co,
fl.
CAMPBELL.
(OCnMt Own 0/ .Appeaz., Eighth. Oircuit. J'ebrulU'1t. 1809.) L ·I1mI.lN TBRBJTOllY-IKP.l1'l'JliLI1'I'G JOY.
In a civil case in the Indian Territory defendant Is entitled to baTe a panel of 18 competent jurors from which to make his peremptory challenges, as provided by Mansf. Dig. Ark. § 4036, which is in force in the territory. RaU/wa'll 00. T. WalhCngton, 49b'ed. Rep. 847, followed.
SAMJIi-INSTBUCTI01'l's-RJliDUCTI01'l' TO WRlTI1'I'G.
In civil actions in the Indian Territory the court cannot be required to reduCe ita general charge to writing, since Man"f.-Dig. Ark. 111181, 8ubd. 5, only requires that. requested instructions shall be reduced to writing.
In Error to the United States Court in the Indian Territory. Action by W. R. Campbell against the Gulf, Colorado &; Santa Fe Railroad Company to recover damages for killing stock. .Verdict and judgment for plaintiff. Defendant brings error. Reversed. E. D.Kenna, J. W. Terry, and a.L. Jack8fm, for plaintiff in error. Before C.UDWELL, Circuit Judge, and SUIBAS andTuAVER, District Judges. CALDWELL, Circuit Judge. This was action commenced before .. United States commissioner in the Indian Territory {those officers in that territory being in"tested by act of congress with the juri$diction com-
an