696
FEDERAL REPORTE:B,
voL 49.
waf' asked for, .and therefore no time was fixed for the payment of costs. They were paid' January 15, 1892, aDd the supplemental bill was filed on the next day,--a delay of two months and twelve days. Inasmuch as no order was asked or IPade fixing the time of payment, and as the defendants' counsel accepted the costs, when paid, I cannot say that this delay debars the petitioner in the bill of review from filing her supplemental bill. The decision upon the demurrer was postponed until this payment sh,ould be made Or excused; Inasmuch as, the case was argued some time ago, if the respective counsel have any views in addition to those which were contained in their briefs, I should be glad to receive them in writing.
SOUTHERN PAC.
Co. 11.
RAUB.
(C'/,rcuU Court
0/ Appeaw, N'/,nth.
C1trcwU. March 7', 181l9.)
1.
' ., Under Code C!vilProc; Or. § 187, providing that an opinion aiready formed by a juror is not alone sufficient to sustain a challenge, but that the court must be sati.. iled from all the oircumstauees that tbe :j1l.ror cannot t1'Y the case impartially, the :rnlillg'" otrthe court on the juror's qualUioa.tions will not be reviewed unless all of the evidencetaken at the examination be presented in the record, although the te.. tiD'iony produced shows the juror to have a fixed opinion on the merits of the cause. State v.Tom; 8 Or. 179, followed. Under C<>deCivil }iroc. .or. § 281, providing that the point of exception to a juror must be particularly stated; it is not sufficient to challenge for cause witbout stating the particular reasons'for such challenge. , ' '
2. SJ.ME';"-CHALLENGBS."
The discretionary finding of the trial judge in passing upon a juror's qualifications will reviewed unless1t. appears to have l)een exercised arbitrarily. 4. SAME-ExcEPrrON8. .." the court, of a challenged juror for insufficient reasons, is no ground for exception1wq.en it aPtJea1'8 that the remainder of the jury was made up of personsto whom the excepting party made no objection, ri.
B.
SAME-REVIEW,'
To base error upon the court's ruling that a.juror need.not answer as to his prejndice against corporations, it must appear thllot the party: making the challenge was thereby prevented from ascertaining whether the juror had such prejUdice as , would interfere with his conclusions in arriving at a verdict. All TO FAMILY. ' ',' In an action for personal injuries it Iillpeared that plalnti:Cr had no external hurt except a slight bruise, but ,that he had been in bed ever since the accident,-a period of several months. Evidence was admitted without objection that he had a wife and honie. Bela prOper to admit further evidence that he bad two children, of seven and five :vears respectively, not for the purpose of increasing the damages, but as explaip.ing·wby the members of his family were not called to testify as to his condition during that time, and as tending to show that he was not shamm.tng illness."" . ,:, '
SAME-REVIEW.
In a daIlJa,e ilult for personailnjuries, where the evidence points to some internal hurt, marilfeating itself in symptoms of 'hysteria, the Illedical testimony being , conflicting,' ap; ,inlltl;1;¢.tion of defendant's witpesses, who had had experien(Je,in Similar oasel!l was entltle,d to the greatE\r weight, is not nece.. ,sarily disregarded in averaict Tor plaintiff, where the lattel' had produced other , testimony ten4i1lg,tQ.show.,the sel'ious nature of his injuries. &. SAME-EXCESSIVE;
7.
testimony of the attending ,physician, corroborated by that "of, another, medical ex·
A verdict for $10,000 for persbnal injuriell to an adult is not excessive where the
,"
.
IlO'OTHERN PAC.
co; ,,;
BAtJIl.'
697
pert, was that plaintttr could not regain his health, and other eTidenOll tended to ahQw the aeriona nature of the Injurie&, even though phy&iolau oalled by defend· ant teatifted that plaintitr ought to recover aoon.
Error to the Circuit Court .of the United States for the District of Oregon. At Law. Action by John B. Rauh against the Southern Pacific Company for'damages for personal injuries. Judgment 'for plaintiff. Affirmed. W. a. Belcher, for plaintiff in error. Doolittle, Pritchard, Steven8 Gr088CUp and Cox, Teal Minor, for defendant in error. ' Before HANFORD, HAWLEY, and MORROW, District Judges. MORROW, District Judge. This was an action by John B. Raub, the plaintiff in the court below, (the defendant in error here,) against the Southern Pacific Company, to recover damages for personal injuries, receivedby him while traveling asa passenger on a train belonging,to the company between Portland, Or., and Albany, in that state. While the train was in motion, a bridge over .which it was.passing gave way. The bridge was at a point on the road known as "Lake Labish," in Oregon. at the time of the disaster, was sitting in a car which beThe came involved in the wreck, and in falling and colliding with other cars raised tbe plaintiff from his seat, and immediately threw him back and against the side of the car with such force that he was bruised on the side of his head, and injured in his side and back. The case was tried . before a jury, and the plaintiff had a verdict and judgment for $10,000 and ('.osts. The company sued out this writ of error. For the l'evetsa:l of the judgment errors of the court are assigned relating, to the impaneling of the jury, the admission of evidence, and the verdict of the jury. 1. The E.r.amination of Jurora. ' In the selection of the jury 23 persons were called and examined as to their qualifications to sit as jurors in the case. Plaintiff and defendant were each entitled to three peremptory Two of the persons called were challenged peremptorily by the plaintiff, and three by the defendant. Three were challenged by the plaintiff for, cause, and, the challenges being sustained by the court, the defendant excepted. Two were challenged for cause, but by whom is not disclosed by the record; The challenges were, however, sustained without exception. One juror was excused by the court on account of bodily infirmity. To the remaining 12 persons who were accepted and finally swom as jurors to try the case, the defendant interposed two challenges for cause, which were disallowed, and defendant excepted. To three others defendant propounded certain questions, which the court stated the jurors need not answer, the defendant excepting to the rulings of the court in that behalf. The same proceedings occurred in the examination of another juror, but the ruling of the court is not assigned as error, and will therefore be considered as waived. The other six jurors were examined and accepted without objection. Section 800 of the Revised Statutes of the United States provides that jurors to serve in the C9tU:ts of the United States. jn each state. respectively, shall have the
of law of sucb·state at Sfates are summoned. We must therefore look to the law of the state of Oregen·to ,determine: the qUlUifieations Qtthe j urOlS this case.. The Code of Civil Procedure of that state, regulating the method of forming juries,
wh'eB' sl!{b1i'
of
courf.ll :of th(:l
"Sec. cbil.lletlge are of twokirids: · · · (2) For the existence of a state of mind on the part of the jttrol', in referenCe to the action,· to :elthetparty, wh1cb satisfies the trier, in ,the .exercise of a sound discretion, that he cannot try the issue impartially, and without prejUdice to the challenging. which is known inthis Code as ',actual bias.' .. · ," Sec. 187. 'A challenge be taken for the cause tlonooin the second subdivision of section" 185. But on' such Clballenge, although it should appeattbat'the juror challenged has formed or expressed an opinion upon the. merits of the cause from what he may have sllstain the chalheard or rend, such opinion shOo)) not, of i\;8e1£ be but the court IDU,st be fromaH the cirCtlwstances that the jUl'or cannot disregard and try the Issue hnpartially." '''Sec. 192. The chaHense. tliay be excepted to by the advefae party for In· SUfficiency, and, If so, the court $hall tl.etel'mille the sufficiency thereof, assritfilng the ·facts alleged therein to· be· ttue. The challenge may be denied by the adverse party, and,Jtso, the court shall try. the issue and determine the'law and the fact.·. . ,. . ,i., . . "Sec.l!}3. ppon the trial ofa challenge the rules of eVidence applicable. to testimony off.erea upon the.trial qf issue of .shall govern. The or any other penoll, otherwise competent, may be ex· atillnoo as a witness by either party. 'oIl a challenge be determined to be suf. flcient, or found to be true, as the cilSe'may be, it shall be allowed, and the juror to whom it was taken excluded; bUt. if determined or found otherwise, it shall be (Usallowed." .: . ' ,... . .' "!;lec.230. An exception at the trial to a decision upon matter of law, whether such trial be by jury or court, and whether the dec18ion be made during the formation of a jury or in the adulission of eVidence, or in the charge to the jury, or at any other time from the calling of the BOo tionfor trial to the rendering of the verdict or decision. ,But no exception ahall be regarded on a motion for a new trial, or on an appeal, unless the exbe material. anc;1affec.t the substantial rights of th.eparties. "Se.c. 231. The point of the exception s,ball be particularly stated. · · · .. to the formation of the jury under Eight: of the errors assigned the provisions the Code just cited. Three of these have. reference to the examinationandqultlifications of ·three persons,......Craybill, O'Con. Dor t and Holman,......whowere called and examined, but not accepted as and the other. five have reference to the examination and qualifications of five persoDs,-Griffin, :&con, Cimjno, Foster, and RichardilOn,-who were called and exatninedand accepted as Jurors to try the
. .....
provides as 'folloW-lSI .
.}'Sec. I8S.A challenge. for causeA$;.an objection. to a juror. "nd .may be that the juror is disqualified from serving in any action; either (1) on trial. or (2) particular; that he is disqualillecl from serving in
.....
...
'.,.,
0'"
, .·. .
We will first consider the exceptions taken in the examinatil>n of those persons who were excluded from the jury. The second perllOn caJled to thaJw'l-
case. The lib:aminatifYT/.oj Per8<Yil8 woo were not Accepted aa Jurore.
699 hox was a Mr. C1'&ybiIl, who, being examined on ,his voir dire as to his qualifications to sit as a juror in the case, was asked by counsel for def(jndant, "among other questions," the following: "Q,iesUon. Have you read or heard or talked about the accident that occurred at'Lake Labish? Answer. I have.Q. Have you converSed with anyone who claimed to 'have Me'n at the wreck and examined it, or stated anything about the fact& connected with it? A. I believeJ l1ad a short talk With Mr. Faul, one'of the railroad commissioners. after he made the examination. was with l1im 9r with his partner; one or the other., (}. Dill the party who talked wiLhyou claim to state to you what was the oause of the wreck as ,hell nderstood it't A.N0, I do not think he did. The talk wasthesltuation of the wreck after it occurred. Q. Now, from what you read in thent'wspaper, and this conversation or any other conversation you might have bad or heard, have you formed or expressed at any time an opinion as to the (lanse of this wreck, or the liability of the railroad company for it? A. Ido not know that I ever expressed an opinion; possibly I have. But it is quite, natural for me, and, I $uppose anyone else, to form an opinion or draw some conclusion when they raadan article, and especially in a case of this kind.: Q. Then you have formed some opinion? A. I think so; yes. Q. Have you that opinion now? A.Yes, to a certain extent. Q. Is that such an opinion' as would require evidence to remove it? (Thfl court stated that the juror need not answer that question, and the juror did not answer the same; to which ruling and action of the court couDsel for the defendant excepted. i Counsel for defendant proceeded with the examination as follows:) Q. Is that 8 fixed opinion? A. Well, it is an opinion that would certainly take evidence to remove it. Q. Then you think it is a fixed opinion at the present? A.' Yes, !think so. (Counsel for the defendant submitted a challenge to the juror for cause. Counsel for plaintiff cross-examined the juror as follows:) Q. What was the nature of the reports you read, from. which yOIl drew. this I opinion? A. Well, I read the repOlts that were pUblished in the and other papers, and I also read the repQrt of the railrqad commission. I read it pretty carefully. Q. Did you read the enLire report? A. I think I, did. Q. Did you place credence in the report of the facts? A. I certainly placed credence in the report. Q. And from that you formed your opinion?, A. Yes, sir." ' The court overruled the defendant's challenge for CRuse, to which rul. ing of the court the defendant excepted. Defendant challenged said· Craybill peremptorily, and thereby exhausted one of his three peremptory challenges allowed by law. , ' As to the first exception, it is sufficient to say that the question that WRS asked and ruled out by the court was subsequently answered by Craybill in response to further interrogatories propounded by defendant's counsel; and the challenge for cause, which WIlS denied by the court, and is made the ground of the second exception, is based upon that answer. There is, therefore, nothing remaining of the first exception upon which to base a claim of error. The challenge for cause is predicated upon the statement of Craybill that he thought he had a fixed opinion, but the record does not contain the whole of the examination of this juror. The examination, as set forth in the bill of exceptions, is qualified by the introductory statement that, "among other questions," he was asked those reported in the record. In the absence of a record containing all the evidence taken upon the trial of the challenge, we cani
700
FlllDERAL REPORTER,
vol. .49.<
disregard whatever opinion he may have had,and try the issue impartially, fUld without prejudice to the substantial rights of the defendant. In .the cl.lseof State v. ,Tom, 8 Or. 179, the ,supreme ,court of that state affirmed the'decision of the lower court in overruling challenges to certain jurors, where their qualifications, as appears from the records, were as doubtful as in the case und,er consideration. "The Jurors in that case stated that they had formed opinions as to the,guilt or innocence of the prisoner;, ,that they thought their opinions were fixed opinions, and that it would take eviden,ce to remove them; but,it did not appearfrom the bill of exceptions that all the evidence taken in the, examination of the jurors had been rej)()rtedto the supreme court. The court said: ".As to whether the juror was impartial or not was a question to be tried by the court from the before him. Before WI! ca.n judge whether the discretion exercised by him in overruling the chaIlenge was a sound discretion, and, properly exercised in this case, we must have a!! the evidence be. fore us in this court that was adduced on the trial of the chaIlenge in the circuit court." , To the same effect is State v. Braum,7 Or. 186; Haydm v. Long, 8' Or. 244; State v. Saunders, 14 Or. 300, 12 Pac. Rep. 441. This constructionof by tpe supreme cOllrt of Oregon is binding on this court. There is still another reason why the ruling of the court upon the challenge to the juror cannot be disturbed. The challenge was for cause, but withoutfufther statement or explanation as to'the particular ground of the challenge. .This is not sufficient. The grollnd of the challenge must be specifically stated. This is the requirement ()f section 231 of the Oregon Code of Civil Procedure, providing tbat J'tbe point of the exception shall be particularly stated." But it may be said that the examination had already disclosed the ground of the challenge. The juror had said that he thought he had a fixed opinion, RPd this was manifestly the particular cauee from which a billS was to be inf.erred. The answer to such .a suggestion is .that the inquiry in reviewing such proceedings on appeal is not so much as to the character of particular statements made by the juror concerning his opinions in relation to the merits of the cause as His to determine whether the court exercised a sound discretion in concluding from all the circumstances that the juror could try the issue impartially, and without prejudice to the rights of the parties. This inquiry must therefore include the consideration of all the facts involved in the juror's qualifications, that can be made a matter of record; and even then such a record may be imperfect, since the court, in passing upon the question, is to consider the appearance of the person called as a juror, his manner, tone, and character, as exhibited under examipation, and all the and circumstances that tend to establish the presence or absence of the qualifications of a fair and impartial juror. It has therefore been held that the findings of the court upon the qualifications of jurors will not be reviewed unless U
all the' circumstances, ·was in error in determining that the juror could
npt say that thil court,in the exercise of a sound discretion, and from
BOpTHERN PAC. 00.
701
that the court has exercised its discretion arbitrarily. clearly State v. Tom, 8 Or. 177; State v. Saunder8,14 Or. 300,12 Pac. Rep. 441. In Freeman v.People, 4 Denio, 9, the court said: , "Wbenli' jnror is challenged for principal cause or for favor, the ground of cba'leilge should be distinctly stated, for witbout this the cballenge is incompetent, and may be wholly disregarded by the court." In Glovel', 14 N. J. Law, 195, it is declared to be the duty of the. challenger to"State why the juror does not stand indifferent. He must state some facts which, if true. will show eitber that the juror is positively or and legally disqualified, or create a probability or suspicion that he is not or may not be impartial. .. In v. O'Neal, 12 Cal. 492, the court said: "It is rlots\lfflcient to say, ·I challenge the juror for cause,' and then stop, .. , in tbe present case. The ground upon which it can be sustained, if at all, must be also stated." In Peoplev\Reynolda, 16 Cal. 130, the court defined an insufficient challenge Jfith more precision. The court said: "IL is not enough to say, · I'challenge tbe juror for implied bias,' and then stop. Tbe particular cause from wbich sucb bias is to be inferred must be stated." The law' upon this point is well established by authority. People v. Hardin, 37 Cal. 259; People v. Dick, ld. 279; People v. Renfrow, 41 Cal. 37; People v. McGungill, ld. 429; People v. Walah,43 Cal. 447; People v. Buckley. 49 Ca1.241; People v. Cochran,61 Cal. 548; State v. Squaires, 2 Nev. 226; Estes v. Richardson, 6 Nev. 128; State v. Chapman, ld. 320; State v. Raymond,l1 Nev. 98; State v. Knight, 43 Me. 11; Power8 v. Presgrove$,,38 Miss. 227; State v. Dove, 10 Ired. 469; Bonney v. Cocke, 61 Iowa, 303, ,16 N. W. Rep. 139;8tate v. Munchrath. 78 Iowa, 268, 43 N. W. Rep. 211. The fourteenth perSOll called to the jury-box was Thomas O'Connor, who,after! examination as to having taxable property, was challenged by plaintiff for cause, and the challenge denied by defendant. 'The court sustained plaintiff's challenge. It is assigned as error that this challenge was made by defendant, and assumes that the juror remained on the . panel; but tli,e juror was in fact excluded, and the assignment need not, therefore, be further considered. The fifteenth person called to the jury-box was Herbert Holman, who, on examination, testified that he was a steam-boat man, running with the Kellogg Transportation Company. He was thereupon accepted by the defendant; but, on further examination by plaintiff's counsel, the juror testified that he was a stockholder in the com pany, and that the company had a general traffic arrangement with the Southern Pacific Company. Plaintiff thereupon challenged the juror fo.r cause, on the ground that the company in which the juror was a stockholder had such relations with the Southern Pacific Company as to remove him from the position of a perfectly unbiased juror. The court sustained the challenge, and defendant excepted. The claim that this challenge should
\Tea not :dillylthe thejufor'Wlta the defendant was entitled to have nlW ren-min on the .panel. . this. time Ele\len jurorS hlidbeen acceptedfto&sworn to try the Hdlmari had: the was completed QY the siMotion'of five jur<;>!s,to :wp-pmno objection or even suggested, .by the defendant. The' allowance of this challenge did not, resultiri ariY'prejlidice to defendant's interests, since acompetent and unbiased juror was selected in the place of the one excluded. &1u"ood 'qo. v. Herbert, 116 U. S.' 646, 6 Sup. Ct. Rep. ofl','juror to the defendantwere of the sallie cnaracter as the relations of the juror Holman totJ,l,e defendant in this case. In the case,cited the juror was a lumbex:dealer, and the company gave. him a its right of way for a without rent. lie llad also he4rdthe to the plaintiff spoken of or explained. !twas not shown, however; that he had anyactnaJ bias for or against either party, or any belief of opinion touching the merits of the case. He was, never'tbeless, challenged, but it dId not appear whether the challenge was for calIse or was peremptpry. 'The supreme court, in passingtlpon 'the question; . "It is the party asserting error show It. It will not be assumed. B,ut. if we regard the challenge as for cause, its allowance did not prejudice the company. A competent and unbiased jUror was selected and sworn. and the company had, therefore, a trial by an impartial jury. which' was all it could demand." : ,Thompson, in his work on Trials"§ 120, the law as follows: ..As already pointed ollt. the to reJect is not a right to select. No party can acqUire a vested right to have a particular member of the panel sit upon the trial of his cause until he hasbeen accepted and sworn, It is enough that It appear that his caUse has been tried by an impartial jury. It is no ground for exception that. against his objection. a juror was rejected by the court upon insufficient grounds. unless. through rejecting qualified persons. the necessity of accepting others. not qualified. has been purposely created." The .&:amination and QualificatWn of Jurors Accepted and Sworn to Try the Case. Having disposed of the eXceptions relating to the qualifications of persons called, examined, and excluded from the jury, we will now proceed to consider the qualifications of those persons who were examined, accepted, and sworn to try the case. The first person called to the jlhy-box was Robert Griffin. His examination, as it appears in the reeotd, contains the introductory statement that, "among other questions," he was asked the following by coullsel[or defendant: , "Question. Have you any such bias or prejudice against corporations. as su'ch, or railroad companies. as would interfere with YOUl' conclusion in finding a verdict in a cause in'whlch such corporation or company was a party? (The court stated that the juror need ,not answer the question. and the juror did not answer the same; to which of the court cOllnsel for the .defendant excepted. Thereupon the,QQunsel for the detelldant submitted B challenge for cause. The court ovem,l1ed the challenge. to which ruling of the court the defendant excepted. Thereupon the said person was taken as a juror.)" . ,
$OU':l'JllllRN PAC. CO, fl. RAUB ·
703
. In determining whether the court was justified, under the circum· _tances, in stating to the juror that he need not answer the question as to. his bias or prejudice against corporations or railroads, we at the outset, with the difficulty that the whole of the examination is not reported in the record. It may be that this feature of theexamiI;l,l;ltion had . by other questions, or that the court deemed the scope of the 'question too gen:eral,and that the examination of Griffin,like that of any 'other witness,should have been directed to the discovery of facts from whi4h the coud'niight determine whether he was qualified to serve ajurorinJlle mise or not. But, in any view, the record is not sufficient W en8\)lethilil court to pass upon the exceptiop, To base an error upon such instruction. as was given to the juror in this case itshouldappel1r re8Sonofit the defendantw8S prevented from 8HCertaining whetber thElJuror bias or prejudice against corporations or railroads as W()tila interfere witb bis conclusions in airiving at a verdict in tbe case on trial. Tbe cballenge for cause, wbich might hl;lve furnished informatiClt'J the point, is also detective. The ground of the challenge is not specifically stated. Whatever objections the 'defendant may have had to this juror, they are not disclosed in the record. In Ford v. Umatilla Co,., 15 Or. 313, 16 Pac. Rep. 33, the plaintiffbrought an action agaHlst-the defendant to recover damages for injury to certain personal property. Plaintiff alleged that he was traveling through said Umatilla' county, transporting a quantity of household goods and stock cattle and. horses, and that, while his team of four horses and a wagon .with a 10a<1 of household merchandise, and library were being driven over and across the county bridge over Butter creek, in said county, .thebridge broke and fell, precipitating the team. oLhorses and wagon, anli load of goods, merchandise, and library, into the creek. Two of the. horses were killed, and the other· two horses, the wagon, household goods, merchandise, and library were badly damaged.. In impaneling the jury to try the case, one R. Sargeant, a juror, was asked by counsel for. the defendant if there was any prejudice or ill feeling then existingin his In.ind against the county court of Umatilla county; also wasllny or ill feeling growing out of the. transac.which several questions were ob.iected to by the plain. tiff's counsel, &nd the objections severally sustained. by the court, and exceptions were taken to the rulings. On appeal,the supreme court "Tbt1' question pot' by the appellant's counsel to the Juror R. Sargeant, as to whether there was any prejUdice existingin his mind against the county court of U:matilla .county,8nd, whether therlirwas any sUllh prejUdice or.iIl feeling growing out oBhe transaction thenbefore thecpurt, were properques. tions, under I,l practice that has been permitted in trial courts In this state, tnonghw6. ate not aware of its being authorized by statute. Questions of that character are asked in order to ascertain whether or not anygrollnds of challenge exist. But. being a mere question of practice that has been permitted by 8ufierance. of the trial courts, this. court will not undertake to enforce it. The appellant's remedies, where the court to allow the said questioDs to ,be 'asked the juror. was to have submitted; .8 challenge to the
704
FEDERAl, REPORTER,
vol. 49.
juror for actual bias, and specified the grounds upon ,,¥blcli'it was taken. Then, Iftbe respondent's oounsel had excepted to the challenge. arid the circuit court determined that It was insufficient. the decision thereon could have been reviewed by this court. Title 2 of chapter 2 of the Oi vii Code prescribes the mode.of procedure in such cases, but. as the matter now stands, this court cllnn'ot consider it." The fourth person c8lled to the jury-box was C. P. Bacon, who, among other questions, was asked the following by counsel for defendant: "Question. Have you he.ard or read anything in regard to the supposed ause of the wreck, or anything in regard to whether the railroad company. in your judgment, should be held liable 01' not for the wreck? Answe1'. I havet 9. Where didyol.l "btain that information? A. From reading the newspapers. Q. From what you read. did you form or express any opinion as to the IlabUltyof the company or otherwise? A. I llave; both. Q. Is that a fixed opinion? A. It is. (Thereupon the counsel for the defendant submitted a challenge for cause to the juror. and the court overruJed the challenge. and the defendant excepted.)" What we have said respecting the insufficiency of the .record in not containing all the evidence taken upon the trial of the challenge and the failure to state the grounds of the challenge for cause disposes of the objection to The fifth juror called to the jury-box was V. Cimino, who, "among other questions," was asked the following by cQl,lDsel for defendant: . "Question. Do you think you would be governed by the evid.ence that would be given in this. case. and the law as given you by the cotirt, without regard . to anything youmayhave read or heard about? (Thereupon the court stated that the jU1'orneed not answer the question, and the juror did not auswer the same. To which ruling defendant excepted.)" There was no 'challenge for cause. The whole of the examination of the juror is not here, and the assignment of error upon the statement of the court to the juror that he need not answer the question. This, as we have seen, is not sufficient to bring the ruling of the court before us for review. The sixth juror called, H. P. Foster, and the eighth juror called, D. C.Richardson;·were asked questions by counsel for defendant which the court stated the jurors need not answer. Challenges for cause were not interposed, and, for the reasons already stated, we cannot, on the record before us, review the rulings of the court with respect to the errors asSIgned in the examination of these jurors. 2. Admi88ion aj Testimony. Upon the trial of this case the deposition of plaintiff was read to the jury. He testified that he resided at Tacoma, in the state of Washington, and was 29 years of age. In reply to inter'rogatories, he detailed the circumstances connected with the accident to the train on which he was traveling as a passenger, and described the injuries he received .at the; time. He gave an account of his return and, in reply to questions put to him by his counsel, he testified as follows: "Question. What was then done with you? Answer. I tried to eat breakfast with my wife. but leould not eat. so I got to bed when the doctor came. · .· I« Q. On what day, if you l'emember,-on what day of the month.-did
SOUTHERN PAC. CO. '.BAUB.
705
you arrive home after your hurt? A. I reached home on the 14th of November, 1890, at about 6:30 or 7 o'clock in the morning. Q. Where have you been since the time you bave last mentioned? A. From that day up to this time I never left tbisbed., ... ... · Q. You may now state what family you have. (Objected to by counsel for defendant as immaterial. The court ruled upon thIs objection as follows: · I think this may be admitted for this reason: Of course, it cannot be admitted to affect the question of damages sought to be recovered. But we will take some notice of human nature, and its tendencies. the affection of men and women; and I think it may be assumed that a father and husband, ordinarily, if his family needs bis services to support their lives, would naturally it to them if he could. It does Dot always that he will, because we know that there are a great many men who do not; but we may assume that to be the rule. If this man remained in bed a certain length of time, or all the time, since this accident occurred, 1. think the fact that he bas a family dependent upon him, and no resources. might go to the jury for what it is worth, to say whether he is ehamming or not.') 4.1havea wife and. two children. Q. :How old is the oldest? A. Seven years, the one; and five, the other."
Defendant lI.110wed an exception, and the ruling of the court is assigned as error. It is contended, in support of this ruling, that it was based upon the authority of Caldwell v. Murphy, 11 N. Y. 416. In that case the plaintiff had. been injured by the overturning of a stage or omnibus of the ,defendant'l:l, in which plaintiff was a. On appeal it was claimed as error that on the trial the. plaintiff's counsel put this question toplaintitJ: "Had he the means of support for bimselfand family except his labor?" It was objected to. Tbe objection was over-, l1lled, andtbe defendant excepted. The witness answered: "He had 'no lDeans of support except what got from the charity of bis frierids." The jud.ge then put some questions to ascertain the number of perso,ns: in the plaintiff's family, and in what manner they were supported after the injury; it baving been sbown that before that he bad constant employment. The evidence was objected to, and an exception was taken to its admission. The court beld the evidence admissible to show that the plaintiff's circumstances were such that he would probably have been engaged in laboring in his calling if he had not been disabled by his injuries, and that he was in a considerable degree unable to labor. The supreme court sustained the ruling of tbe lower court in admitting bis testimony, and observed "that the evidence was not offered, as the argument BuggestS it to have been, to influence tbe amount of the recovery, under the notion that a poor man would be. entitled to a measure of damages different from tbat wbich would belong to one in other circumstances." In the present case the plaintiff, without objection, had already disclosed the fact that be had a wife and bome, and had been confined to his bed ever since his return from the accident,-a period of several months. He had been attended by three physicians, and examined by otbers. His symptoms pointed to some injury of the spine, but the precise nature of the hurt was not manifest. The extent and character of the injury were in issue in tbe case, and testimony concerning tbe evidence of physical disorder usually attendant upon real disability were material to that issue. His wife and other members of his v.49F.no.9-45
tQ6: familY-i· or, such of thenu\s emmgh to ./lnd the manifestations of disea\ie dn'lli, sick personi' were competent witnesses to 'matters; and l:iis'lwife w!ls,in', substlquently placed on the and gave of She also stated, QbjeGtion, testimony .of' the plaintiff that. the oldef:lt chUd was, only Yeax:s for the·factthatthetwo children notpr,oduced witne&ses, In the case of Pimmylllania 00. v. Ruy, 102 U" 8.460, it did not appear that testi:.. any legitimate bearing upon any I$S\16 ,ihthecase; and i;tE!.,ad9-1ission to have been,l,lrror for that reason. ' We the citcilinstances ofthis case, the testi;. Il\ony.wl1smaterial and relevant, an.d'dldnQt ija:ve the effect of ingthe.damllges, but sel'vedrather to,illformtbe'jury as.to plaintiff's real condition; 8. '1!M V'erdict tlgainBt the Jlnsf,ructions oj the Oourt.:tn charging the jury the judge the following instruction: u· , have testified on behalf of the plaintiff, while expressing the !opinionthat·M is a very sick man, aU admit they were. any pO!,!itiv,e :t'lig:n of injnrY,to his pers0Il:.orany symvtc;>m 1.n hilll"case otb,ll,I' th,ao Whatf... hysteria, and say that they are, unable todeterininewhat,'is the matter. 'With him j while the . medical witriesseson.tbe'pl&rt'of the, say tliat the plaintiff's case is one'of:cleiu'ly defined 'tmlllba'tio hysteria, or a. hysteriealconditionfollowingan' injury; which .nnder proper advice and treatment, s:l1oul4 not have exiswoj ,W$!realinjury at t1}e time of the wreck was only slight,; ..nd that condition is unnecessary and unreal.. No leal witness pat:t ot .J>laintiff to have hll4 any previous experiellce in treating any similar injuQ' from a railr6ad accident, while' two of defendatit'smedical\vitnesses. testified to having' had vel'Y. coJisiderafile experience {nsuch c8llesj'; If, therefore, you believe that these medical witnesses are aU equally hdnest and equally capable in their· professional quaIifications, ·thetestimony Of .those :ofthem whQ. hav.e had. experience,!n such is entitled:tQ greater those who have not had/my such experience; and on arriving at' your vl:\rdict you should be govalways hy the better ., .' ,; .i '.: ' .: i ; ., .' ,
. It is aBsignedas that the jury disregarded the foregoing instrucfinding their verdict· againstdefe:ndant and in favor of plaintiff fQf:$10 ,000. It is contended that there was no eviden.ce tending to show to the plaintiff beyond a slight bruise, the inconvenience produced by the interruption 'of the journey j and the pain experienced at. the time of the accid(lnt. The medical testimony shows that.plaintiff had been under the constnnt care of:a physician since the day of his arrival home after the His regular physician had been absent for, a time, but physician was in attendanee, .and a third physician: was called in once. The bills for 111.edical amounted1;c), $907, .and for, drugs, $57. For the purpOlje of furnishing. medical testimony, in addition to that of his regularphysician, plaintiff .was exam.ined by three otber physicians, who testified in his behalf,. He wasal$o examined by still three others, who testified for the defendant. It·will not be necessary to refer to this testimony in
7(1'detail. Three Qf the phy;;icil1Jls who testified for the plaintiff described symptoms of furictional disOMflrB, and gave it ftstheir opinion that he was seriously sick. The fourth physician testified that he was sick, and seriously injured; if there had been an excretion of pus accompanied with the symptoms as represented. The three physicians who tes.tified for thed.efendant stated, in substance, that, iotheir opinion, plaintiff was Buffering !rOUla nervous disorder. defined as traumatic hysteria, and that his real injury, was slight. Two of these witnesses testified to having had experience in cases .of this character, one being the regularly employed physician and surgeon of the railroad Company. The cou1' instructed the jury that the testimony of those who had had experience inSl1Ch cases to greater weight than the testimony of those who had not had such experience; but there was nothing in the charge that limited the, jury to the weight of the medical testimony. There was other testimony tending to prove the serious character of plaintiff's injury. Before the accident he was a strong, active man. He had.l»; come feeble and helpless, and required nursing. He had not improved under treatInent, bu.t was sick and disabled at the time ofthe trial, and had been in that condition ever since the accident,-a period of more than. six months. .We cannot, therefore, upon the record before .os, say that the jury, considering all the teEltimony in the case, disregarded the instructions of the court in finding a verdict for the plaintiff. 4.E.u:eswive Dam,age8. The last assignment of error is as follows: "The damages allowed by the jUry are excessive, and so contrary to the testimonyof the medical witnesses 88 to show that the Jury were governed by passion and prejudice in fixing said damages." . What we have said respecting the verdict of the jury under the instructions of the court is applicable here, with the further comment bearing upon the question of excessive damages·. The physicians who testified for the defendant stated that, under proper treatment, the plaintiff ought to recover soon; but his attending physician, who had observed the case from the beginning, testified that he did not think plaintiff would recover from the injury so as to be a well man again j and in this opinion he was corroborated by the testimony of another physician, whose judgment was the result of information obtained in the course of two examinations. This testimony,considered in connection with the other evidence, tended to prove a serious and permanent disability; and, if the jury believed there was sufficient basis for the damages awarded. "The finding of the jury on the whole evidence in a cause must be taken as. negativing all facts which the party against whom their verdict is given has attempted to infer or establish from the evidence." Hepburn v. DuboiiJ, 12 Pet. 375. In thi!l view of the testimony, there is nothing in the proceedings to justify this court in saying that the jury were governed by passion or prejudice in fixing tbe damages, or that the damages are excessive. The judgment.of the circuit court is affirmed.
708 LEWIS et al·. fl.
CHICAGO, S. F. & C. Ry. Co·.
(O(rcuit Oowrt, .1:. D. Mvsouri, N. D. Decetnber 7, 189L) L OoNBT1\tlOTION OJ' CONTBAOT-PICRIIORMANOB.
The provision in a oontraotfor railroad grBdlng that the measurements and calcula,tlons by tl/.e railrqad company's chief engineer of tl/.e quantity and amount of the several kinds of work, and his classification of the materials contained in excavations, shall be final and oonolnslve, Is a valid provision, and Is binding upon the parties to the and there oan, be no recovery in excess of hi8 final esti· mate, in the absence of fraud, gross error, or mistake.
.. BA¥B-RELIBII A.GAINST HXST.A.XB.'
The court will relieve mistakes In measurements and calculations appuupon the face of the.llstlmllotes, or clearly proven, thongh not so apparent, or frqm oversight to measure or estimate any partioular part of the work, or from ns: eonstru.etlons putupon the prQvl.sionS of the oontraot by tbe engineer; but .. will not relieve alleged mistakealn determining the kind of materials found In the several outs, the parties being bound by the judgment of the engineer selected by them for speoial skill and attention as the umpire on such questions; nor will It ,relieve against slight dlscrepanoies In meaSurements. WrG. ' ..
..
. 'Under the provisions of· a oontraot for railroad grading, exoavatlons were to be me-.sured and paid for either as eal'th, lOOile rock, or solid rock; loo.se rock to oomrise "shale or soapstone l,Ing In its origlnal or stratill.ed positlonl C10arse boulders n' gravel, cemented gravel, hardpan, or any other material requmng the use of pick and bar,orwhioh oannotbe plowed with a strong, ten.inchgrading plow, well handled, behind a good six mule or horse team." Held, that the materials mentioned were to be olassifled as loose rook, Irrespective of the plowing test, Which was only applioable to the material," not speciftcallynamed.
GRADING.
r.
"
SAME..
It appeared that the materlalin all cuts, except rock cuts, varied much In consistency anddhardness, and .lay in irregular strata, and that the largest part of it was broken bv the plo"". that the practice of the engineer in estimating loose rook by percentagllll was jilstlflable in the oircumstancea. .
..'
.' .
In Equity.
.STATEMENT BY THAYER,
For prior report, see 39 Fed. Rep. 52. , '"
JUDGE.
This was a suit to recover a balance claimed to be 'due for grading a in the state of Missouri. The plaintiffs portion of were subcontra'ctors under McArthur Bros. The contract under which the work was done contained the f0110winJt clau!:le: "The work 'lrhall be executed under the direction and' supervision of the 'cbief engineer Of said railwaycompany'and bis a8sista:nts, by whose measurementsand calculations..the quantities and amounts of tbeseveral kinds of work performed under this contractsbaU be determineci, .and whose determln.atlon shall be .conclusive upon ,the parties bereto; ....... ... and said chief engineer sball decide ev.ery question Which can or may arise between the parties in the execution of this contract, and bis decisioD.sball be binding and final upon botbparties. And whereas, the classification of excavation provided for in the annexed specifications is of a character that makes it necesaalV that specialattenUon should be called to it, it is expressly agreed by the parties to tbis con,tract that the classifications, measurements, and calculations of tbel$a1d engineer ot the respective quantities 6t sucb excavation shall be final and conclusive." . The defendant pleaded this proVision of the contract, and further alleged that the chief engineer of the railway company had made a final estimate of the quantity of work done, and that the railway company J . ' : , " ' . .': ' , .-';