MOBILE & O. R. CO. v. WILSON, 76 F. 127

WOODS, Circuit Judge (after stating tbe facts as above). As we bad occasion to say ip Railroad Co. v. Kelly, 11 C. C. A. 260, 265, 63 Fed. 412: “Jurors are not trained lawyers, and, notwithstanding a general charge covering tbe issues of a case, it is tbe duty of tbe court, on proper request, to give tbe jury a statement of any distinct doctrine or proposition which is fairly and justly applicable to tbe issues or to an important phase of tbe case.” A charge to a jury ought to be more than a skeletonized statement of tbe issues and of abstract propositions of law.

Tbe purpose is that tbe jury shall render an intelligent and discriminating verdict, and to that end ordinarily there must be, though at tbe expense of some repetition, a distinct and clear presentation, in tbe light of the evidence, of I he different issues, and of their bearing upon each, other and upon the general result. A full review of the evidence often may not be necessary, but some explanation of its relevancy and force, when the questions are intricate or close, should be given.

This charge, though comprehensive and concise, on delivery doubtless was clear enough to the lawyers familiar with the case, and on the printed page it is perhaps within the comprehension of readers of average intelligence; but that the jurors, receiving it iu the usual manner, would each properly understand if in all its phases and applications, is not probable, and therefore the special instructions asked should not have been refused solely because comprehended or implied in tin* imager expressions employed. This charge, it is also to be observed, is lacking in important particulars.

Tt omits to state that in respect to the law of the case the instructions of the court are controlling, and that upon matters of fact, the credibility of witnesses, the weight of evidence, and the like, the jury, (hough if may be advised by the court, must Anally exorcist' un indejiendent judgment. The burden of proof is only partially stated. In the federal courts it rests upon the defendant to show contributory negligence, and tiie plaintiff, besides proving the negligence charged, must show (hat he was injured thereby, and to what extent.

Exception was saved and error assigned upon the proposition in (lie charge to the effect that if. by reasonable care and prudence, the defendant company could have awiided the consequences of the plaintiff's negligence, but failed to do so, the plaintiff might recover, though guilty of contributory negligence. If understood to mean that if the servants of the defendant company, after perceiving the plaintiff’s danger, by reasonable exertions could have avoided the1 consequences, the company was liable notwithstanding the plaintiff's negligence, the proposition was unobjectionable. Coasting Co. v. Tolson, 139 U.

S. 551, 11 Sup. Ct. 653, and cases there cited; but in the next sentence, upon which also error is assigned, the court said, in substance, that the question of negligence in this respect, as in others, was to he determined “in view of all the facts and circumstances in the case.” That was, in effect, to eliminate from the case the question of contributory negligence.

Tt permitted tiie jury to conclude that', if the defendant's train had been run with reasonable care and prudence,- — that is to say, at a proper speed, with bell ringing and whistle blowing, — the plaintiff would have escaped the consequences of his negligence, and on that ground was entitled to recover, notwithstanding his own negligence. For this error' the judgment must be reversed. Tt was not error to refuse to direct a verdict for tiie defendant on the ground of contributory fault. The circumstances were such as to make that a question for the determination of the jury.

The judgment is reversed, with directions to grant a new trial,