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lost control of car No. 5, causing the collision the evidence, you find that his injuries are between cars Nos. 16 and 12, because the of a permanent character, such as to cause suap switch on the rear of the car any impairment of ability to earn a living closed, when it should have been opened, in the future, you should consider that fact will not support those counts in the declara in determining the amount of damages, othtion which aver, in effect, that the car was erwise you should not award damages for improperly equipped with a defective air permanent disability. brake. But if you find that the switch was closed, without regard as to how or when it Verdict for plaintiff for $1,800. was closed, if by the exercise of due care and caution the servants of the company might or should have discovered that it was

(4 Pen, 57) closed, and that by reason thereof the air

STATE v. GEORGE. brake failed to act effectually, as it was de (Court of General Sessions of Delaware. signed to act, and that the resultant failure

New Castle. May 22, 1902.) so to act was due to the carelessness, in CRIMINAL LAW-MINOR DEFENDANT-GUILTY competency, or negligence of the servants of

KNOWLEDGE-BURDEN OF

PROOF-EVIDENCE. the defendant company in not discovering

1. Where, on a criminal prosecution, the acthat the switch was closed, and that, as a cused is under 14 years of age, it is incumbent result of the failure of the air brake to work, on the state to show that the accused comthe motorman lost control of car No. 5, and

mited the crime with a guilty knowledge that

he was doing wrong. by reason thereof car No. 16 was forced

2. Such guilty knowledge may be shown by against car No. 12, causing the plaintiff to the apparent intelligence of the minor and from be thrown therefrom and injured, then the

his acts and conduct in connection with the failure to make the discovery and open the

crime, together with any other circumstancen

that will throw light on the subject. switch would constitute negligence. If you find that the servants of the defendant com

Ezekiel R. George was convicted of arson pany negligently and care sly permitted Argued before LORE, C. J., and GRUBB car No. 5 to be overcrowded, and that by rea

and PENNEWILL, JJ. son thereof they lost control of the car; and Herbert H. Ward, Atty. Gen., for the State. that the plaintiff was injured by being thrown from car No. 12 upon the ground be LORE, C. J. (charging jury). Ezekiel R. cause of the failure of the servants of the George is charged with feloniously, willfully, company to control car No. 5 as a conse and maliciously setting fire to and burning quence of the overcrowding of the car, then the barn of Samuel Logan, in Mill Creek hunthe defendant company was negligent. If dred, this county, on or about the 7th day of the injuries alleged to have been sustained April, 1902. It is admitted that the prisoner by the plaintiff were occasioned by the negli is under 14 years of age, and, where a prisgence of the defendant company, or its mo onér is thus a minor, it is incumbent upon the torman, servants, or any of them, and with. state to show, first, that the accused commitout the fault or negligence of the plaintiff ted the act charged, and, secondly, that he contributing thereto, then he would be en did it with a guilty knowledge that he was titled to recover. But, if the negligence of doing wrong. That guilty knowledge may be the plaintiff contributed to and proximately shown by the apparent intelligence of the acentered into the accident which resulted in cused minor, and from bis acts and conduct the injuries complained of, he cannot re in connection with the crime, and any other

circumstances that will throw light upon that Where there is conflict in the testimony, subject. The principle of law governing casyou should reconcile it if you can.

es of this kind, where the person charged is cannot, you should give credit to and be gov an infant, is very clearly stated in 3 Greenerned by the testimony, which, in your judg. leaf on Evidence, $ 4, as follows: "With rement, is most worthy of belief, taking into spect to infants, the period of infancy is diconsideration the intelligence, apparent truth- vided by the law into three stages. The first fulness, bias, and impartiality of the wit is the period from the birth until seven years ness. The weight and value of the evidence of age, during which an infant is conclusiveso determined by you is to be your guide in ly presumed incapable of committing any reaching your verdict. And governed by crime whatever. The second is the period this instruction you should decide this case from seven until fourteen. During this period in whose favor there is a preponderance of the presumption continues, but is no longer the evidence. If you should find for the conclusive, and grows gradually weaker as plaintiff, your verdict should be for such a the age advances towards fourteen. At any sum as will reasonably compensate him for stage of this period the presumption of incathe injuries which he has sustained, includ pacity may be removed by evidence showing ing therein his pain and suffering, his im intelligence and malice; for malitia supplet paired power to perform labor in the past, ætatem; but the evidence of that malice since the accident, and such as may come to which is to supply age ought to be strong and him in the future, his loss of time and labor clear beyond all reasonable doubt. as a result of bis injuries; and if, under The third commences at fourteen; the pre

cover.

If you

sumption of incapacity arising from youth ed as a servant of the defendant company in being then entirely gone, and all persons of cleaning a car of the said defendant at its that age and upwards being presumed, in car barn in the city of Wilmington. The point of understanding, capable of commit narr. consisted of eight counts. The first ting any crime, until the contrary be proved." count contained the following allegation with You have the law as thus stated by Green respect to the injuries to the plaintiff, viz.: leaf, and if, under the circumstances of this “Yet the said defendant, not regarding its case, you believe that the prisoner commit said duty as aforesaid, negligently and careted the offense, and that at the time he bad lessly omitted to provide a reasonably safe sufficient intelligence to know that he was place in which to work, for the said Francis doing a wrong act, and did it willfully and Karczewski, in that it carelessly and neglimaliciously, then your verdict should be, gently passed a dangerous current of electric"Guilty in manner and form as he stands in ity through the wires in and about a certain dicted." If you should have a reasonable car in which the said plaintiff was then and doubt upon any of the material elements of there working for said defendant, so that he the crime charged, your verdict should be, the said plaintiff, who was then and there, to "Not guilty''; the doubt should enure to his wit, on the 2d day of July, A. D. 1900, at New acquittal. The court charges you thus with Castle county aforesaid, in the exercise of respect to the possession of criminal capacity due care and caution on his part, engaged in because we find in the case of State v. Jack the scrubbing or cleaning for the said defendson, 3 Pennewill, 15, 50 Atl. 270, that the case ant of the said certain car, stored in or near is inaccurately stated through inadvertence, said car barn, was, by reason of the defendand we take this method of correction.

ant's omission to provide a reasonably safe

place in which to work as aforesaid, greatly Verdict, “Guilty," with a recommendation shocked, burned, and injured by an electric to the mercy of the court.

current, by reason of touching or coming in contact with an exposed wire in said car,

charged by the said defendant with a danger(4 Pen. 24)

ous current of electricity, and was thereby KARCZEWSKI V. WILMINGTON CITY violently thrown, burled, or caused to fall to RY. CO.

the floor of the said car, or on the seat there(Superior Court of Delaware. New Castle.

of; that by reason of said shock from said Jan. 8, 1902.)

current of electricity the plaintiff was great

ly pained, burned, wounded, and injured, and INJURIES TO SERVANT-NEGLIGENCE-BURDEN OF PROOF-CONTRIBUTORY NEGLI

also, by means of the premises, the said plainGENCE-MASTER'S DUTY-DANGEROUS EM tiff became and was sick, sore, burned, lame, PLOYMENT-YOUTH-INEXPERIENCE - RULES

and disordered, and so remained and contin-MEASURE OF DAMAGES. 1. A master owes its servant the duty of pro

ued for a long space of time, to wit, hitherto, viding a reasonably safe place to work in, and during all of which said time the said plainreasonably safe and proper tools.

tiff suffered and underwent great pain, and 2. It is a master's duty to a servant to keep

was hindered and prevented from transacting its premises and tools in a reasonably safe condition.

and attending to his necessary and lawful 3. Where a servant is young or inexperienced,

affairs and business, by him during all that it is the duty of the master to inform him of time to be performed and transacted, and lost the dangers incident to his employment.

and was deprived of divers great gains, prof4. A servant must obey and follow the instructions of his master as to the work he is its, and advantages which he might and othemployed in.

erwise would have derived from the same, 5. It is the duty of both master and servant and also the said plaintiff was forced and to exercise reasonable care and diligence to

obliged and did then and there pay, lay out, avoid accident, varying according to the dangerous nature of the employment.

and expend divers large sums of money, to 6. Plaintiff iu an action against a master for wit, one thousand dollars, in and about the injuries has the burden of proving defendant's endeavoring to be cured of the burns, bruises, negligence. 7. Plaintiff in an action against a master for

and injuries so received as aforesaid, wherepersonal injuries cannot recover if guilty of by the said plaintiff saith that he is injured contributory negligence.

and hath sustained damages in the sum of 8. In an action for personal injuries, plaintiff

twenty thousand dollars, and therefore he can recover for loss of time and wages, past and future pain and suffering, and for result brings his suit." The remaining counts, ing impairment of ability to earn a living. while varying in the pbraseology as to the Action by Francis Karczewski against the

negligence of the defendant, made substanWilmington City Railway Company. Ver

tially the same allegations as contained in dict for plaintiff.

the first count with respect to the injuries

sustained by the plaintiff. The defendant Action on the case for damages for person filed a general deni urrer to the above declaraal injuries alleged to have been occasioned by

tion as insufficient, and contended that the receiving a shock of electricity whilst employ injuries were not stated in the narr, with suf

ficient particularity. After hearing argument, | 3. See Master and Servant, vol. 34, Cent. Dig. $314.

the court overruled the demurrer; and, upon

application of defendant's counsel, judgment or latent, as are within his knowledge, or of respondeat ouster was entered.

with which he may become acquainted with Argued before LORE, C. J., and SPRU the ordinary use of his faculties. It is the ANCE and GRUBB, JJ.

duty of both master and servant to exercise Levin I. Handy, for plaintiff. Walter H.

reasonable care and diligence to avoid acciHayes, for defendant.

dent. Such care and diligence must be great

er or less according to the danger of the emLORE, C. J. (charging jury). This is an ployment in each case. This action is based action on the case to recover damages for upon the negligence of the defendant compersonal injuries. Francis Karczewski, the pany. The burden is upon the plaintiff to plaintiff, claims that about June 27 or 28, show such negligence by a preponderance of 1900, he was in the employ of the defend proof. The injury must be the result of the ant company, at their carshops in this city, negligence of the defendant only. If the as a scrubber and cleaner of cars; that on plaintiff contributed proximately in any way that day he was set to work scrubbing and

to the accident, he cannot recover, as the law cleaning a summer car while the trolley pole will not attempt to measure the extent of was in contact with the feed wire; that,

such contribution. Governed by these simwhile he was cleaning the top of the car ple rules of law relating to master and servwith a wet sponge, his band came in con ant, you are to reach your verdict in this tact with the end of a live wire hanging

case. down from the top of the car; that thereby

If you should find for the plaintiff, your he received an electric shock, was knocked verdict should be for such reasonable sum down, became insensible, and his hand in of money as will compensate him for his injured and permanently disabled, and was juries; including therein his loss of time and otherwise hurt; that he was ignorant of the wages, his pain and suffering in the past, danger, and had received no warning or and such as may come to him in the future, proper instructions at the hands of the de resulting from this accident, and also for fendant company. The defendant company

any impairment of ability to earn a living in claims, on the other hand, that he was spe

the future, resulting therefrom. cially warned and instructed not to work upon a car while the trolley was in contact with Verdict for plaintiff for $400. the feed wire; that, if he received any shock and injury, it resulted from a disregard of such instructions, and was the result of his

(97 Me. 255) own negligence; further, that the alleged in. BLUMENTHAL V. BOSTON & M. R. R. jury to the hand was not in fact caused by (Supreme Judicial Court of Maine. Jan. 1, an electric shock, but in using a chisel in

1903.) work at his own home. It is for you to de

RAILROAD - ACCIDENT AT CROSSING - CONtermine which of these contentions is true. TRIBUTORY NEGLIGENCE-NONSUIT. There are no new questions of law raised in 1. While the plaintiff was attempting to drive this case. It is mainly a question of fact

over the defendant's railroad at a highway

grade crossing, he was struck by a freight for you to determine from the evidence, and

train of the defendant and sustained serious we shall charge only upon the questions of bodily injury. The collision occurred upon the law raised by the prayers of the parties.

last, as the plaintiff was driving, of the railIt is conceded on both sides that at the

road company's three tracks at this crossing.

The southerly rail of this last track was about time of the accident the relation of master

25 feet northerly of the northerly rail of the and servant existed between the defendant first track. company and the plaintiff. Where such re

Giving the plaintiff the benefit of the most lation exists, there are certain legal duties

favorable construction possible to the evidence,

it may be assumed that, as he was approachimposed upon each party. It is the duty of ing the crossing, his view of the track, in the the master to provide for the servant a rea

direction from which the train was coming, sonably safe place in which to work, and

was entirely obstructed by buildings, and, per

haps by a board fence which extended along also reasonably safe and proper tools with the southerly side of the railroad, until he which to perform such work, and to keep reached a point inside of this board fence. both place and tools in such reasonably safe

But the end of this fence, at the street, was

30 feet southerly of the southerly rail of the condition. Where the employment is danger

track upon which the collision occurred. From ous, it is the master's duty, either by general this point he had an unobstructed view of the rules or special instructions, to warn and in- | railroad in the direction from which the train form his servant of the danger, if by reason

was coming, for a distance of at least 300 feet,

and from the first of the three tracks his view of youth or inexperience the servant is unac

was unobstructed in the same direction for quainted therewith. The measure of such in. nearly 400 feet. structions should be gauged in all cases by

The plaintiff was driving, as he says, at a

fast walk, and the speed of the freight train. such youth or inexperience. It is the duty

as estimated by plaintiff's witnesses, was from of the servant to obey and follow the instruc 15 to 20 miles an hour. Consequently, when tions of the master as to his work. The the plaintiff was upon the first track, with an servant assumes the ordinary and usual risks

unobstructed view of between three and four

hundred feet, the train was in plain view, and of his employment, whatever they may be.

only from 125 to 150 feet distant from the He also assumes such risks, whether patent crossing, since the speed of the train was only

five or six times that of the plaintiff, and they WISWELL, C. J. While the plaintiff was came into collision after the plaintiff had traveled a distance of 25 feet.

attempting to drive over the defendant's Held that, as there was no controversy as

railroad at a highway grade crossing, he was to any of these facts, it was proper for the struck by a freight train of the defendant and presiding justice to refuse to submit the case sustained serious bodily injury. Claiming that to the jury and to order a nonsuit. That from

this collision was caused by the negligence these uncontroverted facts one of these two conclusions is irresistible: Either the plaintiff

of the defendant's employés in the managefailed to take such precautions as to looking ment of the train, he brought this action to and listening, before attempting to cross the recover damages for the injuries sustained third track, as have been laid down by all authorities as indispensable to his right of re

by him. At the trial, upon the conclusion of covery; or else he did look and saw the ap

the plaintiff's testimony, the court ruled that proaching, train, and took his chance of safely a prima facie case had not been made out, crossing in front of it. That in either event and ordered a nonsuit. The case comes to his negligence contributed to the accident, and, in accordance with the well-settled law of this

the law court upon the plaintiff's exception to state, will prevent his recovery.

this ruling. 2. Although the question of negligence, either In accordance with familiar principles, of plaintiff or of defendant, is one of fact for which have been so frequently laid down by the jury, when the facts and circumstances are in controversy, and even when they are

this court that reference to the authorities is not, if fair-minded and unprejudiced persons unnecessary, it was incumbent upon the plainmay reasonably differ in the conclusions to be tiff, in order to entitle him to have the case drawn from such facts, it is not a question of

submitted to the jury, to introduce testimony fact for the jury, but one of law for the court. when the facts are undisputed and but one in

tending to affirmatively prove two proposiference can properly be drawn therefrom. tions—the negligence of the defendant in

3. It is undoubtedly true that, where the de some of the respects complained of, and that termination of an issue of fact depends upon

no failure upon his part to exercise due care the credibility of witnesses, and where a jury would be justified in coming to a conclusion

contributed to the accident; and it was as either way as to the credence to be given to essential for him to affirmatively prove the the witnesses upon the one side or the other, exercise of due care upon his part as to show it is the duty of the court to submit such an issue to the jury, however firmly convinced

negligence upon the part of the defendant. the presiding justice may be that there is no

So far as the first proposition is concerned, doubt as to where the truth lies. And, even it is sufficient to say that we think that the where the surrounding circumstances merely évidence introduced by the plaintiff, unconmake the story of a witness improbable, it is

tradicted, was sufficient to justify a jury in still the right of the litigant to have the issue thereby raised submitted to the tribunal creat

finding that there was negligence upon the ed by the Constitution and the laws for the part of the defendant's employés. It theredetermination of such questions. But this is

fore becomes necessary to consider whether, not so when the indisputed circumstances show that the story told by a witness upon a

in accordance with the well-established rules terial issue cannot by any possibility be true, as to when the question of negligence is one or when the testimony of a witness, necessarily of fact for the jury and when one of law relied upon, is inherently impossible..

for the court, the uncontradicted evidence in 4. Under the circumstances of this case, it does not help the plaintiff that he testified that

behalf of the plaintiff in support of his seche did look and did not see the approaching ond proposition, that no want of due care uptrain; nor did this testimony, under the cir on his part contributed to the accident, was cumstances of the case, raise an issue of fact which should have been submitted to the jury. sufficient to entitle him to have this question (Official.)

submitted to a jury.

The plaintiff was a dealer in junk. Upon Exceptions from Superior Court, Cumber the morning of the day of the accident, April land county.

30, 1900, he had driven with his own horse Action by Hyman Blumenthal against the and express wagon from Portland to WestBoston & Maine Railroad. Judgment of non brook. During the greater part of the foresuit, and plaintiff excepts. Overruled.

noon he had gone about from house to house Case to recover damages sustained by the

in the latter city, plying his trade. Shortly

before noon he turned into Central street plaintiff when driving over the defendant's railroad at a highway grade crossing at Cen.

and drove northerly along that street totral

wards the 'grade crossing of the defendant's street in Westbrook. The plaintiff

railroad, his destination being a grain store claimed that the collision was caused by the

beyond the railroad crossing, where he innegligence of the defendant's employés in the

tended to buy grain for his horse. management of its train.

At this highway crossing there were three Argued before WISWELL, C. J., and

tracks of the defendant's railroad. A board STROUT, SAVAGE, POWERS, PEABODY,

fence extended along the southerly side of and SPEAR, JJ.

the railroad from Brackett street to the eastWm. Lyons, E. Foster, and 0. H. Hersey, erly line of Central street, a distance of for plaintiff. J. W. Symonds, D. W. Snow, about 390 feet. The end of this fence at the C. S. Cook, and C. L. Hutchinson, for defend Central street line was 30 feet southerly ant.

from the southerly rail of the third or last

track at the crossing, and the northerly rail 2. See Negligence, vol. 37, Cent. Dig. $$ 290, 293. of the first track, in the middle of the street,

ma

was about 25 feet southerly of the southerly , plaintiff used and which is made a part of rail of the third track. The plaintiff crossed the case. From these facts one of these two the first two tracks safely, and was struck conclusions is irresistible: Either the plainwhile attempting to cross the third and last tiff failed to take such precautions as to track.

looking and listening, before attempting to As the plaintiff drove northerly along Cen cross the third track, as have been laid tral street, from the point where he entered down by all authorities as indispensable to that street until nearly to the first track, his his right of recovery; or else he did look view of the railroad on the easterly side of and saw the approaching train, and took his the street--the direction from which the chance of safely crossing in front of it. In train was coming-was more or less obstruct either event his negligence contributed to ed by buildings, and some of the witnesses the accident, and, in accordance with the think that it might also have been obstruct settled law of this state, that negligence ed by the board fence above referred to. will prevent bis recovery. When upon the Giving the plaintiff the benefit of the most first track, where his view of the railroad favorable construction possible to the evi. was unobstructed for a much greater disdence in regard to these obstructions to his tance than was necessary to see the apvision, it may be assumed that the plaintiff's proaching train, he had ample opportunity view of the track in this direction was en to stop his horse or to turn aside. Instead tirely obstructed until he reached a point in- of affirmatively proving due care upon his side of this board fence.

part, he has conclusively proved a want of But it is made absolutely certain by the such care, which contributed to the acciplan which was furnished by the defendant, dent. but which was used by the plaintiff and Although the question of negligence, eibrought to the law court as a part of the case, ther of plaintiff or of defendant, is one of and as to the accuracy of which no question | fact for the jury, when the facts and ciris raised, that, after the plaintiff reached a cumstances are in controversy, and even point inside of this fence, he had an unob when they are not, if fair-minded and unstructed view of the railroad easterly for a prejudiced persons inay reasonably differ in distance of at least 300 feet. The plaintiff the conclusions to be drawn from such facts, himself repeatedly testified, upon cross-exam- it is not a question of fact for the jury, but ination, that from both of the first two tracks one of law for the court, when the facts are that he crossed he could see easterly along | undisputed and but one inference can propthe railroad for several hundred feet. The erly be drawn therefrom. The following are plan shows that the view from the first track a few of the very numerous authorities in easterly was unobstructed nearly, if not quite, support of this principle: Romeo v. Boston to Brackett street, a distance of about 390 & Maine Railroad, 87 Me. 540, 33 Atl. 24; feet, without any portion of the fence, even McQuillan v. City of Seattle, 10 Wash. 464, if that was high enough to be an obstruc 38 Pac. 1119, 45 Am. St. Rep. 799; Kilpattion, coming within the line of vision.

rick v. Grand Trunk Railway Company, 72 The plaintiff, according to his own testi Vt. 263, 47 Atl. 827, 82 Am. St. Rep. 939; mony, was driving at a fast walk, and wit- Tully v. Philadelphia, Wilmington, and Balnesses for the plaintiff testified that in their timore Railroad Company, 2 Pennewill, 537, judgment the speed of the freight train was 47 Atl. 1019, 82 Am. St. Rep. 423; Heimann from 15 to 20 miles an hour. Assuming v. Kinnare, 190 Ill. 156, 60 N. E. 215, 52 L. these estimates to be correct, when the plain- R. A. 652, 83 Am. St. Rep. 123. As we have tiff was upon the first track, with an unob- | already seen, this case belongs to the latstructed view of the railroad easterly for a ter class, because from the undisputed facts distance of between 300 and 400 feet, the the inference of contributory negligence uptrain was only from 125 feet to 150 feet dis on the part of the plaintiff is the only one tant from the crossing, because the speed that can be drawn. It was therefore the of the train was only five or six times that of duty of the court at nisi prius to take the the plaintiff, and they came into collision case from the jury and order a nonsuit. after the plaintiff had traveled a distance of But it is urged that the above doctrine is 25 feet. Consequently, when the plaintiff not applicable to this case, because the plainwas upon the first track, 25 feet distant | tiff testified that before attempting to cross from the place of collision, he had an unob the railroad track he both looked and listenstructed view of the approaching train, ed for an approaching train, and did not see which was not more than 150 feet distant or hear the one that came into collision with on the track from the crossing. If the rela- him until he was on the last track and just tive speed of the freight train was not as before the train struck him. It is claimed great as the witnesses have estimated, then, that, by reason of this testimony of the of course, the train was still nearer the plaintiff, an issue of fact was raised which crossing at the time the plaintiff was upon he was entitled to have passed upon by a the first track.

jury. There is no controversy about these facts. It is undoubtedly true that where the deThey are shown by the testimony introduced termination of an issue of fact depends upon by the plaintiff, and by the plan which the the credibility of witnesses, and where a

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