UNION PAC. RY. CO. v. NOVAK, 61 F. 573

HAWLEY, District Judge (after stating the facts as above). 1. It is argued that the court erred in overruling defendant’s motion to set: aside the service of summons, upon the ground that the same was not served upon the defendant. The marshal made return that he served the summons “on the 7th day of August, 1891, on said defendant, * * * by delivering to and leaving with Perry Griffin, agent of said defendant at the city of Spokane, i:' * * in said district, a certified copy thereof, together with a. copy of the complaint, certified to by the clerk.” This return, upon its face, shows a sufficient service.

But, in support of the motion to have the stir vice set aside, two affidavits were presented: One by Perry Griffin, to the effect that, at the time the service was stated in the return to have been made, he was sick, and was not at his place of business; “that he was not personally served with said summons, nor was he notified of service of same until the day after its pretended service; that he is not an officer or agent of the Union Pacific Bailroad Company, hut is agent of the Union Depot Company, of Spokane Falls, and, as such agent, sells such tickets as said Union Depot Company furnish him for sale.” The other by George Lang, which, after stating that he is in the employ of Perry Griffin, and that no personal service was made upon Griffin, says “that said marshal came into the office of the said Perry Griffin, and left the papers on the counter, and this affiant picked them up and examined them; and when tho said Perry Griffin was able to attend to bis duties, and in Ms place of business, * * * tMs affiant handed said copy of complaint ahd summons to said Perry Griffin, who refused to accept the same.” The plaintiff presented, in reply thereto, the affidavit of G.

H. Chamberlain, who was the deputy United States marshal who made the service, who said: “On the 7th flay of August, 1891, I went to the office of Perry Griffin, in the city of Spokane, * * * for the purpose of serving him with said summons, as an agent of said defendant. Said Griffin was at the time absent from his office, and I left said summons with the person in charge of said office for delivery to said Griffin. Afterwards, to wit, the 8th day of August, 1891, I met said Griffin on one of the streets of said city, and asked him if he had received said summons.

He. said that he saw it in one of the drawers in his office. 1 then asked him if he would admit service of said summons; that I had made return on said summons as having served him therewith, and that I didn’t want any fooling about it;' that, if he did not admit service thereof, that I would serve it again upon him personally, but if he would admit service I would not serve him again. And he agreed to admit service thereof, saying that that would be all right.” The attorney for defendant, when malting the motion, specially appeared for that purpose.

The court held the marshal’s return to be valid, and a bill of exceptions was duly filed and allowed. Thereafter, the defendant appeared, and filed its answer. It is at least doubtful whether the affidavits of Griffin and Lang were competent for the purpose of attacking the return; and it is also questionable whether the objection to the service could be raised by a simple motion, instead of a regular plea, where, as in this case, the return of the officer was regular upon its face. Harkness v. Hyde, 98 U. S. 476, and Amy v. Watertown, 180 U. S. 302, 9 Sup.

Ct. 530, cited upon this point by defendant, were cases of an entirely different character. In the Harkness Case the officer made return showing that the service was made upon an Indian reservatioh, where, under the law, he had no jurisdiction to serve any process. In the Amy Case the law required the service of the process against a municipality to be made upon the mayor, and the return showed that the service was made upon the ex-mayor, whose term of office had expired. In both cases the facts appeared upon the face of the returns.

In such cases, presenting only questions of law, the court had the right to dispose of the same upon motion. In the present case the facts tend to show that there was a technical defect in the service of the summons; but it is purely technical, and not jurisdictional, and does not appear upon the face of the return. The service was irregularly, not illegally, made.

The officer, in making the return, subjected himself to criticism, if not to censure and condemnation, for his acts, for there is never any excuse for an officer to make any return that is not strictly in accordance with the facts. •If the question is to be considered upon its merits, we are of opinion that the court did not err in denying the motion to set the service aside.

Under the statute of Washington, the service of summons against a railroad corporation is to be made by delivering a copy thereof, together with a certified copy of the complaint, to any station, freight, ticket, or otiier agent thereof within the slate. 2 Hill’s Ann. St. Wash. 173. The affidavit of Griffin, if competent, does not clearly and affirmatively show that he was not such an agent. It is evasive. He says that he is not an officer or agent of the defendant; but he adds that he is an agent of the Union Depot Company, and, as such agent, sells such ticket s as said Union Depot Company furnishes for sale.

The only reasonable inference to be drawn from ihe facts stated is that, if this company gave him tickets of the defendant to sell, he would, of course, sell them, and did sell them. In the absence of a positive, clear, and unequivocal statement of his position and duties as to the sale of the defendant’s tickets, the court had the right to hold that he was a ticket agent of the defendant, upon whom service might, under tire provisions of the statute of Washington, be made.

The affidavit bears upon its face the appearance of having been made as a subterfuge, instead of presenting any meritorious ground to defeat the service of the summons. Forrest v. Railroad Co., 47 Fed. 2. But it is claimed that no personal service of the summons was made upon the agent. JSio personal service was made on ihe 7th of August, 1891. The officer’s return to that effect was false. It is not denied, however, that he received the papers the next day, and that upon inquiry he so notified the officer, and acknowledged service of the process.

There is no denial of the service, except the technical one that the officer did not personally hand the summons to the agent. Under all the facts of this case, the action of the court in overruling defendant’s motion, upon whatever ground it ma.y have been based, was not erroneous. 2. During the trial the plaintiff called W. H. Butterfield, who was allowed to testify, as an expert, tha t “it was absolutely necessary to have two brakomen to set the brakes” on a train like the one upon which plaintiff was employed.

This testimony was objected to by defendant upon the grounds (1) that the witness was not qualified to express an opinion; (2) because the testimony was incompetent. It is undoubtedly true that witnesses must ordinarily state facts, and not give their opinions. Expert and opinion evidence ought only to be received in cases of necessity, in regard to matters which require peculiar skill and knowledge, which are not common to men in general, and without which knowledge the jury would be unable, from the facts, to properly decide the matter.

If the relation of the facts and their probable results can be determined without especial skill and knowledge, the facts themselves must be given in evidence, and the conclusions or inferences must be drawn by the jury. Under the pleadings and the evidence in this case, it was competent for each party to give testimony as to whether or not the employment of only one brakeman was sufficient to check or control the speed of the train by means of the hand brakes upon the cars.

This question, to be properly answered, required some skill and knowledge upon ihe part of the witnesses as to the character and locality of the brakes, and as to the number of brakemen required to manage, the same, which could not fairly he said was within the experience and knowledge of men who had never been engaged in running and managing a train of cars. In Railroad Co. v.

Bailey, 11 Ohio St. 335, the court said: “That the running and management of railroad locomotives and trains is so far an art outside of the experience and knowledge of ordinary jurors as to render the opinions of persons acquainted with the running and management of such locomotives and trains, as experts, admissible and proper testimony, in proper cases, is very clear on principle, and is so recognized in Quimby v. Railway Co., 23 Vt. 394, and Railway Co. v. Reedy, 17 Ill. 580. See, also, Railroad Co. v.

Smith, 22 Ohio St. 227.” Butterfield, as to his qualifications, testified that he was an engineer by profession, and that he was at the time of the accident, and had been for some time previous thereto, a conductor working upon, and having charge of, a similar gravel train. This was at least prima facie sufficient to establish his qualification.

Moreover, the question whether a witness is shown to be qualified to testify to any matter of opinion is always a preliminary question for the judge presiding at the trial, and his decision thereon is conclusive, and will not be reversed unless manifestly erroneous, as matter of law. Spring Co. v. Edgar, 99 U. S. 658; Manufacturing Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601; Railway Co. v. Warren, 137 U. S. 353, 11 Sup. Ct. 96; Coasting Co. v. Tolson, 139 U. S. 559, 11 Sup. Ct. 653; Towboat Co. v. Starrs, 69 Pa. St. 41; Perkins v. Stickney, 132 Mass. 217; Slocovich v. Insurance Co., 108 N. Y. 56, 14 N.

E. 802; City of Ft. Wayne v. Coombs, 107 Ind. 84, 7 N. E. 743. 3. It is claimed that the court erred in allowing Dr. Harvey to testify as to certain facts told him by the plaintiff during the course of a medical examination made for the purpose of enabling him to give testimony in the case. Dr. Harvey, as an expert physician, testified with great clearness and minuteness as to the extent, nature, and character of the numerous injuries he found upon the person of the plaintiff, and gave his professional opinion as to their probable effect upon the plaintiff’s physical condition in the future.

In his entire testimony, which is quite lengthy, there are only two allusions made to anything that the plaintiff told him. The examination took place a short time before the trial. The effect of an injury to the spine, whether permanent or not, which was one of the many injuries which plaintiff received, depended, to some extent at least, upon the length of time that had occurred after the injury; and, in giving his testimony as to the effect of this injury, Dr.

Harvey said, “I was told by the patient that he had been injured over two years since.” There was certainly no prejudicial error in admitting this statement. It was a conceded fact in the case, proven by several witnesses, and not controverted by any. As a result of the examination, the witness said, if the injury “was caused over two years ago, it is permanent.

It becomes a serious matter, and increases with time. * * * It will be a physical impossibility for him to engage in any manual labor that requires the use of that limb or the spine.” Upon his cross-examination, after testifying to the fact that the examination 'which he made was strictly physical, the witness said: “I knew that his bowels didn’t work, from symptoms of that character, and what he told me.

He told me that his kidneys were out of order.” This testimony does not come within the principle of the rule of exclusion of hearsay testimony, as laid down in the authorities cited by defendant, to the effect that the physician who makes the examination for the purpose of giving testimony in the case is not permitted to state what the patient told him in reference to the specific cause of the injury, which is, of course, one of the issues ordinarily presented at the trial for the jury to decide; but the rule is just as well settled that the physician may testify to what the patient said in describing his bodily condition, and the character and manifestations of his pains, when such statements become necessary to enable the physician to give Ms opinion as an expert, on account of the latent nature of the facts to be proved by it.

The action or nonaction of the internal organs could not readily he seen. In such cases the statement of the injured parly is ordinarily admissible, in order to enable the expert physician to determine the real nature of the trouble at the time of the examination. But, in addition to this matter, it appears from the evidence in this case that the physician knew what the trouble was from the plaintiff’s symptoms, discovered by his own examination, as well as from what the plaintiff told him.

The character of the examination made by the physician was very thorough, and was such as to render it entirely free from a,ny suspicion that the statement was made by plaintiff for the sole purpose of manufacturing testimony for the trial, which is one of the principal mischiefs that the rule for the exclusion of the patient’s statements was intended, to guard against. "We are of opinion that the testimony given by the physician, including what the plaintiff told him, was clearly admissible. In Barber v.

Merriam, 11 Allen, 324, the court said: “It is true that evidence of the statements of a parly to his physician or surgeon, of his bodily ailments and symptoms, is, in its nature, hearsay, and is hable to some of the objections which he against that kind of testimony. Its admissibility is an exception to the general rule of evidence, which has its origin in the necessity of the case. The existence of many bodily sensations and ailments which go to make up the symptoms of disease, or injury can be known only to the person who experiences them.

It is the statement and description of these which enter into, and form part of, the facts on which the opinion of an export sis to the conditions of heallli or disease is founded. As they can be proved only by (he declarations of the party whose bodily condition is the subject of inquiry, such declarations must be admitted, or the proof of them will fail altogether.

To the argument against their competency, founded on the danger of deception and fraud, the; answer is that such representations are competent only when made to a person of science and medical knowledge, who has the means and opportunity of observing and ascertaining' whether the statements and declarations correspond with the conditions and appearance of the persons making them, and the present, existing symptoms which the eye of experience and skill may discover.” In Railroad Co. v.

Sutton, 42 Ill. 440, cited and relied upon by defendant, the court, in reference to the rule, says: “A physician, when ashed to give his opinion as to the causeof a patients condition at a particular time, must necessarily, in forming his opinion, be, to some extent, guided by what the sick person may have told him, in detailing his pains and sufferings.

This is unavoidable, and not only the opinion of the expert, founded in part upon such data, is receivable in evidence, but he may state what his patient said in describing his bodily condition, if said under circumstances which free it from all suspicion of being spoken with reference to future litigation, and give it the character of res gestae.” In Railroad Co. v. Newell, 104 Ind. 265, 3 N.

E. 836, the court, after a lengthy discussion, and a reference to numerous authorities, held that a physician, as a basis for his opinion, may testify to statements made by a patient in relation to his symptoms and conditions, when received during, and necessary to, an examination with a view of enabling the physician to give his opinion as an expert, although such statements are made after the patient had commenced an action to recover damages for the injury. To the same effect, see Quaiffe v. Railway Co., 48 Wis. 513, 4 N. W. 658; Johnson v. Railroad Co., 47 Minn. 430, 50 N. W. 473; Railway Co. v.

Snyder, 117 Ind. 435, 20 N. E. 284. 4. In reference to the merits of this case, it may be said that there are certain well-defined rules and clearly-settled principles of iaw relating to the duties, obligations, and liabilities of railroad corporations and their employes, which, in their application to the particular facts of this case, will enable us to virtually dispose of many of the assignments of error without specific notice of each assignment, or of the points specifically urged by counsel.

The general rule exempting the railroad company, as the common master, from liability to one of its servants or employes for injuries occasioned by the negligence of a fellow servant in the same common employment, is substantially to the effect that, when the employe engages with the master for the performance of certain specified duties and services, he takes upon himself the natural and ordinary risks, hazards, and perils incident to the performance of such services.

This necessarily includes the risks arising from the carelessness and negligence of others who are in the same common employment, because these are perils which the servant is as likely to know, and against which he can' as effectually guard, as the master. They are perils incident to the service, which can be as distinctly foreseen by him as by the master. This general rule is too well settled to require any elucidation, or the' citation of authorities in its support.

But to this general rule there are certain well-defined qualifications or exceptions that should be constantly kept in mind in the application of the rule to the facts of any given case. These exceptions arise from the obligation which the master owes to the servant not to expose him, while engaged in performing the business of the master, to hazards against which he might be guarded by reasonable diligence upon the part of the master.

With reference to this obligation, the master is required by the law to observe all the care which prudence and the exigencies of the situation demand, in providing the servant with tools, machinery, and appliances, and all other instrumentalities connected with, the business in which the servant is employed, adequately safe for such uses.

It is implied in the contract of employment between the parties that the servant risks the dangers which ordinarily attend, or are incident to, the business in which he engages; including, as before stated, the carelessness and negligence of other servants engaged in the same work or common employment, with whose habits, conduct, and capacity he has, in the course of his duties, an opportunity to become acquainted, and against whose negligence be is able to take such care and precaution as his judgment or inclination may suggest.

But it is equally implied by the same contract that the master shall supply the means for the conduct of the business; and justice and public policy require that, in selecting such means, he shall not be wanting in ordinary care.

His negligence in this respect, if any, is not a risk or hazard usually or necessarily attendant npon the business in which the servant is engaged, for the obvious reason that the servant who is to use the machinery, appliances, and instrumentalities provided by 0»' master has ordinarily no connection with their purchase, or with their preservation or maintenance in suitable condition after they have been supplied. The leading cases upon this subject in the state courts are Ford v. Railroad Co., 110 Mass. 240, and Railroad Co. v. Moore, 29 Kan. 683.

This principle is fully recognized and clearly stated by the supreme court of the United states in Railroad Co. v. Baugh, 149 U. S. 386, 13 Sup. Ct. 914, as follows: “A master employing a servant impliedly engages with, him that Ihe place In which he is to work, and Ihe tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe.

It, is the master who is to provide the place and the tools and the machinery; and, when he employs one to enter into his service, he impliedly says to him that there, is no other danger in the place, the tools, and the machinery than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others; but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But, within such limits, the master who provides the place, the tools, and the machinery owes a positive duty to his employe in respect thereto.

That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety; and it matters not to the employe by whom that safety is secured, or the reasonable precautions therefor taken. He has the right to look to the master for tho discharge of that duty; and if the master, instead of discharging it himself, sees lit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter’s right to insist that reasonable percaution shall be taken to secure safety in these respects.

Therefore, it will be seen that the question turns rather o-n the character of the act, than on the .relations of the employes io each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it, be not; one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor.

But, it may he asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so tho former is as fully discharged when reasonable precautions have been taken to place fit and competent persons in charge. Neither duty carries with it an absolute guaranty.

Bach is satisfied with reasonable effort and precaution. * * * It would be easy to accumulate authorities on these propositions, for questions of this hind are constantly arising in the courts. It is enough, however, to refer to those in this court. In the cases of Hough v. Railway Co., 100 U. S. 213, and Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup.

Ct. 590, this court recognized the master’s obligation to provide reasonably suitable place and machinery, and that a failure to discharge this duty exposed him to liability for injury caused thereby to the servant, and that it was immaterial how, or by whom, the master discharged that duty. The liability was not made to depend in any manner upon the grade of service of a coemploye, but upon the character of the act itself, and a breach of the positive obligation of the master.

In both of them the general doctrine of'the master’s exemption from liability for injury to one servant through the negligence of a coemploye was recognized, and it was affirmed that the servant assumed all the rishs ordinarily incident to his employment.” These general rules and principles were stated, and numerous authorities cited in their support, by this court, in the case of Railroad Co. v. Charless, 2 C. C. A. 380, 51 Fed. 562, and followed in Southern Pac. Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. 536.

There is still another principle to be stated which is applicable to the facts of this case, and which was discussed by this court in the Lafferty Case, viz. that the master owes a duty to his servants,. of employing a sufficient number to do the work assigned to be performed, so far as may be reasonably necessary to enable them to do it in safety, and the master must exercise ordinary care in order to relieve himself of liability in this respect. 1 Shear. & R. Neg. § 193; Flike v. Railroad Co., 53 N. Y. 549; Booth v. Railroad Co., 73 N. Y. 38.

Applying these principles to the facts of this case, it is apparent that the court did not err in overruling the defendant’s motion to instruct the jury to find a verdict for the defendant.

It was a question of fact, raised by conflicting evidence, for the jury to decide, whether the proximate cause of the injury was the result of the carelessness or negligence of the plaintiff, or his fellow servants in charge of the train, or whether it was caused by the negligence of the defendant in failing to provide suitable and proper appliances and brakes, or furnishing sufficient help, to properly control and manage the train.

It is well settled by frequent decisions of the supreme court of the United States that no case should be withdrawn from the jury unless the conclusion from the facts necessarily followed, as matter of law, that no recovery could be had, upon any view which could be reasonably drawn from the facts which the evidence tended to establish. Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. 16; Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118; Dunlap v. Railroad Co., 130 U. S. 649, 9 Sup. Ct. 647; Railway Co. v. Cox, 145 U. S. 606, 12 Sup. Ct. 905. In Railway Co. v. Ives, 144 U. S. 417, 12 Sup.

Ct. 679, the court said: “Wben a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that ■all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.” See, also, Southern Pac. Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. 536; Railroad Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748. 5.

There are several assignments of error in relaiion to certain portions of the charge given by the court to the jury, some of which will be .specifically noticed; and, as to others, it is a sufficient answer to say that the charge of the court must be considered in its entirety, instead of separately. It is not to be expected that each instruction in the charge will contain all of the qualifications and exceptions to the rule therein stated.

It is sufficient if the qualifications, exceptions, or modifications are elsewhere stated in such a manner as to make it clear and plain that the principles applicable to the case, and to the particular question involved in the instructions complained of, were fairly, fully, and correctly stated in the charge of the court, as a whole. There; is no evidence lending in the slightest degree to show any negligence upon the part of the plaintiff in the discharge of his duties as ñreman.

The court charged the jury that the defendant was not liable for the neglect, if any, of Sissler, upon the train, in failing to apply the brakes on the cars in the train for the purpose of controlling the speed of the train, or slopping the same, and that if the jury found that one brakeman could have stopped the train by applying all the brakes upon the cars composing the train, and that the train could have been stopped by the use of such- brakes, and that Sissler negligently failed to apply such brakes, and should find from the evidence that the negligence of Sissler, in failing to apply the brakes, was the sole cause of the injury to plaintiff, the plaintiff could not recover.

The court further charged the jury that if it should And that the injury to plaintiff resulted from the negligence, if' any, of Hill, the engineer, in failing to keep said train under control, and tha t Hill could have stopped the train by reversing his engine, and using no other appliances, and that it was safe for him to do so, under the circumstances under which the train was running, and that such neglect on the part of the engineer was the proximate and only cause of the injury to the plain (.iff, then the plaintiff could not recover.

The court emphasized these points by further charging the jury as follows: “If you find from ill© evidence that the injury to the plainüff resulted from the neglect, if any, of the engineer, or the neglect, if any, of Sissler, or both of them combined, in falling to keep the train under control, or in stopping the same, and that the said engineer, or said Sissler, or both of them, with the appliances at hand, could have controlled the train, under the circumstances under which it was running, or have stopped the same in time to have avoided the collision, and if yon further find that the failure of said Sissler, or said engineer, or both of them, to keep said (rain under control, or to have stopped the same, was the. sole, proximate, and immediate canse of the injury to the plaintiff, then I charge you that the plaintiff cannot recover in this action, and you must find for the defendant.” In the light of the charge of the court upon this point, it is manifest, from the verdict, that the jury must have found that in running. managing, controlling, or endeavoring to control, the train, the plaintiff, the engineer, Hill, and brakeman, Sissler, were free from fault, or at least that their negligence, or the negligence of either of them, if any, was not the proximate cause of the injury, and that the defendant was negligent in furnishing said train, in not using ordinary and reasonable care in providing suitable appliances, machinery, and brakes, or in not having a conductor or another brakeman, on the train, and that the proximate cause of the injury to plaintiff was owing to the negligence of the defendant.

But, in this connection, it is contended by the defendant that the court erred in giving other instructions, which were erroneous, and of such a character as to mislead the jury to the prejudice of defendant. The instructions complained of were given after the jury had retired to deliberate upon their verdict, and had returned into court with a request for further instructions relative to there being only one brakeman on the train, and with reference to the train of cars left standing on the main track.

The court, in reply to these questions, instructed the jury as follows : “As to whether the defendant was negligent in the particulars charged, it is charged that- the failure to provide a conductor was negligence; that the company negligently failed to provide a conductor. Also, it alleges that there was only one brakeman.

In regard to the cars that were standing on the main track beyond the station at Rockford, I stated to you that it was the duty, under the rules and regulations of the road, for the engineer to have brought his train to a stop at the station, provided the train was under control; or, if he was able to bring it to a stop, he should not pass the station without first bringing the train to a full stop.

If you believe from the evidence that the engineer did not have control of the train, so that he was unable to stop it at the station, and that, necessarily, the train went by the station, then you have a right to take into question the situation, and determine whether it was negligence on the part of the company, through its agents at Rockford, in allowing these cars to remain there on the main track, and whether 'that negligence caused this injury, or whether that in connection with the other defects in the train, and the failure of the defendant to perform its duty in regard to the makeup altogether, was the cause of the injury.

If the evidence should satisfy you that there was no necessity for this train to pass the station without coming to a stop there, and the engineer could have stopped, and through his negligence the cars dashed by into the cars beyond, then this complaint dpes not entitle the plaintiff to recover damages for the injury to him, if it was caused by the negligence of the engineer.- That is not the ground of his complaint, and therefore he cannot recover damages in this case, if you find that that was the cause of the.injury. I think, perhaps, I have made myself clear on that point.

Primarily, taking into question the cars standing there on the track, it is a question whether the conductor [engineer] had' control of the train, and could not have stopped it, or not. If he did, and went recklessly by, then the collision was due to his recklessness.

If he could not help it. then it is for you to say whether, the cars being there, and the train dashing by into them, the defendant was negligent in this particular.” In giving this instruction the court inadvertently used the word “conductor,” instead of “engineer.” When its attention was called to this fact, the court said to the jury: “I inadvertently used the word ‘conductor,’ when I meant ‘engineer,’ in referring to the handling of the train.

Now, if there was a conductor on the train, or not, or if the other man was only a brakeman, without a conductor’s authority or power, is one of the questions for you to pass upon, in this cáse. I do not mean to tell you whether there was á conductor on that train, or not. You must ascertain that fact.” Subsequently, when the jury again came into the court room for further instructions, one of the jurors asked the question, “Whether or not we shall consider this man, Crowley, a eoservant?” The court replied: “That depends upon what the evidence shows to yon the fact to be in regard to bis situation tliere.

If he had a situation to control the movements of the train, and control the action of the plaintiff and his coemployes about the road, and the operations of the trains, he would not be a coservant. But if he was a mere employe, like the rest of them, without authority to command,—that is, to control and to command the movements of the trains,— he would he a coservant.” Another juror then asked the court, “Would a conductor he a co-servant?” The court replied, “Yes,” and then said: “The conductor on the same train in which the plaintiff was serving as a fireman— You ask if the conductor would be a eoservant.

I answered yon wrong.

A conductor of the same train on which tlie plaintiff was a fireman would be his vice principal, and not a eoservant.” The contention of defendant is that the court, in one of its answers, left the question for the jury to determine whether Sissler was a conductor, and, if the jury should so find, then the court, in answer to the last question asked by a juror, conveyed the meaning to the jury that, as matter of law, Sissler would be a vice principal, for whose negligence the defendant would be responsible; that the remarks of the court were in conflict with other instructions; and that notwithstanding the regular* charge of the court, previously and correctly given upon this subject, that the defendant was not, responsible for Sissler's negligence, if any, the jury had the right to take the last expression of the court, and may have been guided and controlled by it.

If it could be fairly and reasonably said that the remarks of the court in answer to the questions asked by tlie jurors were in direct conflict with his previous instructions, then the contention of defendant should be sustained, but an examination of the entire record convinces us that there is no such conflict. The remarks of the court, given upon the spur of the moment, were not elaborated upon, and made as perfectly clear as the principles which were enunciated in the charge. This is natural.

The first reply was made to correct an inadvertence in ihe use of words, and at the same time, by so doing, to remove the impression, if any, that the jury might have had, from the inadvertent use of the word “conductor,” that the court considered there was a conductor on the train. It may he conceded that the last answer did not contain the qualifi cations which should have been given upon the question as to whether or not a conductor on the same train on which the plaintiff was a fireman would be a vice principal of the defendant, within the rule announced by the supreme court in Railroad Co. v. Baugh, 149 U.

S. 368, 18 Sup. Ct. 914, and by this court in Railroad Co. v. Smith, 59 Fed. 993. But the remarks of the court must be taken in connection with what was previously said by the court in reply to the question of another juror as to whether or not Orowley was a coservant. And, in any event, it is evident that the jury, as sensible men, were not misled into the belief that gissler, who had been temporarily placed in charge oí the train by Crowley, the conductor, was a vice principal of the defendant, for whose negligence, if any, the defendant would be responsible.

With reference to the negligence of Sissler, whether called a conductor or brakeman, the jury were clearly, positively, and repeatedly charged and instructed that the defendant could not be held responsible for any careless or negligent act of Sissler.

Even after 'the remarks complained of were made, the court, in answer to the question of a juror, “Shall we take into consideration the manner in which the employes on this train performed their duties,—whether or not they could have held the train under control?” answered “Yes,” and said, “If you fix the responsibility on the engineer, or on Sissler, as I instructed you before, the plaintiff could not recover.” From all the instructions given by the court upon the question of Sissler’s negligence, it becomes plain that the jury could not have been misled upon this subject by the remarks of the court objected to.

As was said by Judge Brewer in Crew v. Railway Co., 20 Fed. 94: “The question, in all such cases, is not whether some technical error may not have crept into the instructions, hut whether, taking the case as a whole, it is apparent that the law was presented fairly and correctly to the jury.” 6. It is argued that the court erred in charging the jury .upon 'the question of defendant’s negligence in leaving the cars on the main track at Rockford.

The charge of the court was substantially the same as contained in the instruction given in reply to the question of a juror, heretofore copied, and need not be again repeated. The' same objection is made to each. We are of opinioin that the court did not err in giving this charge. There was testimony given in the case which called for an instruction upon this point.

The fact that Crowley, who was a conductor having the charge, management, and control of the four gravel trains, including the one upon which the plaintiff was employed, gave directions to Hill, the engineer, and Sissler, the brakeman, to let their train come, and the road would be clear, in connection with the other facts and circumstances, justified the giving of the instruction, and the principles contained therein were proper for the jury to consider.

The only criticism bearing upon the question of error in said instruction is that, standing alone, and read by itself, it would seem to limit the jury to the sole consideration of the question whether the engineer could have stopped the train at Rockford before passing the station, and that it does not, of itself, submit the question to the jury whether Sissler, the brakeman, could not have so controlled the train as to have enabled the engineer to stop it; and upon this point it is claimed that the jury might have found that the engineer could not .have stopped the train, but that Sissler could.

This criticism is disposed of by what we have already said in answering the argument of defendant to the other instructions given by the court in reply to questions asked by the jurors, which makes it equally clear that the jury •could ■ not have been misled by the failure of the court to have mentioned Sissler’s negligence again in this instruction, although it would have been proper so to do. The giving of an erroneous instruction, which was not prejudicial to the objecting party, is never deemed to be sufficient to justify a reversal of the case. Railway Co. v. Ives, 144 U. S. 409, 12 Sup. Ct. 679. 7.

Upon the question of the burden of proof to show contributory negligence upon the part of the plaintiff, the court charged the jury as follows: ‘•A defense luis been interposed here, in the answer, charging him with neglect and carelessness winch contributed in producing the injury. This would be a complete bar, if it is shown; but llie burden is upon the defendant to show that by positive evidence, sufficient to outweigh all the evidence to the contrary. TTnless that is so shown, no carelessness or neglect of duty on the part of the plaintiff could be a bar to his recovery.

If the defendant was negligent in the particulars specified, which neglect was tile direct and proximate cause of the injury, any contributory negligence on the part of the fellow servants or coemployes of the plaintiff would not affect his right to recover damages.” If this charge is reasonably susceptible of tbe construction claimed by defendant,—that it devolved upon the defendant to affirmatively prove, by positive evidence, that plaintiff was guilty of contributory negligence, independent of the evidence that was given upon the part of plaintiff,—then the instruction is erroneous.

The principle of law is well settled that if the proximate and sole cause of the injury is to be attributed to plaintiff’s contributory negligence, or the negligence of his fellow servants or coemployes, this would be fatal to his right to recover; and it makes no difference how or when that fact appears during the trial,—whether by inference from the facts testified to upon the part of plaintiff, or by affirmative evidence introduced by tbe defendant. It is wholly immaterial who proves the fact, so long as it is proven. The use of the word “positive” in the instruction was unfortunate.

Tbe same mistake was made in another portion of the charge of the court, which required the plaintiff to bring “affirmative evidence, of a positive character,” as to the negligence of the defendant, “sufficient to outweigh all evidence to the contrary as to those facts.” Wherever the facts are of such a character that a jury might reasonably infer therefrom that the defendant was guilty of negligence, or that the plaintiff contributed by his own negligence to the accident which caused the injury, it becomes a question for the jury to decide.

It has never been required that evidence of negligence should be direct and positive. In the very nature of the case, the plaintiff must labor under difficulties, in proving the fact of negligence; and, as the fact is always a .relative one, it is susceptible of proof by circumstances bearing more or less directly upon the fact of negligence,—a kind of evidence which might not be satisfactory in other cases, open to clearer proof. This is in accord with the general principle of the law of evidence which holds that to be sufficient evidence which, in its nature, satisfies an unprejudiced mind. 1 Shear. & It.

Neg. § 58, and authorities there cited. But the charge of the court is not, under the facts, susceptible of the construction sought to be placed upon it by the defendant.

It is manifest, however unfortunate certain words or phrases in the charge are, that, when it is carefully considered, it simply 'means, and the jury must so have understood it, that the burden was not upon the plaintiff, in making out his case, to prove that he and his coemployes were'entirely free from fault; that the question of contributory negligence was an affirmative defense;1 that the burden is upon the defendant to establish it by “evidence sufficient to outweigh all the evidence to the contrary;” and that, unless the contributory negligence “is so shown,” it would not bar the right “to his recovery.” The question as to whether the burden of proof rests upon defendant or upon plaintiff, in actions of this character, upon the issue of contributory negligence, has been the subject of frequent discussion in all of the state courts; and there never has been, and probably never will be, any uniformity in the decisions in the state courts.

Id. §§'107, 108. It is sufficient to state that in a majority of the states, including the state of Washington (Railroad Co. v. O’Brien, 1 Wash. 599, 21 Pac. 32; Spurrier v. Railway Co., 3 Wash. 659, 29 Pac. 346), the burden of proving contributory negligence rests upon the defendant; and this is the rule almost universally followed in the United States circuit courts, and is approved by the decisions of the supreme court of the United States. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291; Hough v. Railway Co., 100 U. S. 214; Railroad Co. v. Mares, 123 U. S. 721, 8 Sup. Ct. 321. 8.

With reference to the refusal of the court to give the instructions asked for by defendant, it is only necessary to say that the court is never compelled or required, by the -rules and practice of the national courts, to give instructions in the language used by counsel, simply because the instructions asked for contain correct principles of law that are applicable to the facts of the case. It is always within the discretion of the court to give its charge in its own language, and such is the usual and better practice.

If the instructions so given correctly embody all the principles of law applicable to the case, then the appellate court will not consider the question whether the instructions asked for by counsel were, or were not, in all essential particulars, correct. In Railroad Co. v. Horst, 93 U. S. 295, the court said: “It is the settled law in tills court that if the charge given by the court below covers the entire case, and submits it properly to the jury, such court may refuse to instruct further.- It may use its own language, and present the case in its own way.

If the results mentioned are reached, the mode and manner are immaterial. The court has then done all that it is bound to do, and may thus leave the case to the consideration of the jury. Neither party has the right to ash anything more.” Keeping in mind these general principles, it is clear to us that the court did not err in declining to give the various instructions asked for by defendant’s counsel. 9.

After a thorough examination of the evidence, the instructions of the court, tbe various assignments of error, the arguments of counsel, and the authorities cited by them, we are of opinion that no error was committed by the court which was prejudicial to the defendant. The instructions given by the court were in the main in accordance with the general principles we have announced, and in all other respects were as favorable to the defendant as the law would warrant, aud the facts justify. The judgment of the circuit court is affirmed, with costs.