Exceptions are allowed to the rulings of the court in the progress of the trial, and the provision is, that the review, if the finding is special, may also extend to the determination of the sufficiency of the facts found to support the judgment; but if there be no exceptions to the rulings of the court in the progress of the trial, and no special finding of the facts, the judgment must be affirmed, as this court has no power to re-examine any question decided by the circuit court.

to the question whether the facts found are a trial by jury, and also would violate the prosufficient to support the judgment. Propositions vision of the Judiciary Act, which prohibits of fact found by the circuit court in such a case the Supreme Court from reversing any case are equivalent to a special verdict and, conse- "for any error in fact." 1 Stat. at L., 85. quently, are irreviewable here except for the pur- Three propositions are admitted by the plainpose of determining the single question whether tiffs, which it is important to bear in mind, as they are sufficient to warrant the judgment: follows: (1) That no formal special finding was nor is the circuit court required to make a made, signed or filed until the commencement of special finding, as the Act of Congress pro- the Circuit Court at the next Term after the vides that the finding of the circuit court may be judgment was rendered, when the paper called either general or special, giving the circuit court in the transcript "finding of facts" was signthe same power in that regard as has always ed, filed, and entered of record. (2) That it has been possessed by a jury. Ins. Co. v. Folsom, 18 been repeatedly decided by this court that the Wall., 237, 21 L. ed., 827; 1 Archb. Pr., 2d opinion of the court below does not constitute Am. ed., 213; Co. Litt., 228b; Litt., sec. 386; such a formal finding as that required in such 3 Bl. Com., 378. a case. Ins. Co. v. Tweed, 7 Wall., 44, 19 L. ed., 65; Dickinson v. B'k., 16 Wall., 250, 21 L. ed., 278. (3) That the record shows that the opinion of the court was the only finding filed at the time the judgment was rendered, from which it is suggested rather than argued [141 that the judgment was unauthorized or irregular. But the suggestion is entirely without merit, as neither the law or justice requires that the general finding of the court shall be in writing. On the contrary, the conclusion may be orally announced, and the direction to the clerk to enter the judgment may also be oral. Nor is it correct to suppose that the statement in the transcript, that the court, upon due consideration, found the issues for the plaintiffs, is either unauthorized or without legal effect. What is stated in the conclusion of the opinion, to wit: that the plaintiffs are entitled to judgment for the amount of the insurance, would have been sufficient to authorize the clerk to enter judgment if the announcement had been oral instead of in writing, as it was; and it is abundantly sufficient, when taken in connection with the judgment and the statement, immediately preceding it, to warrant the conclusion that the issues were duly found for the plaintiffs, and that the judgment in their favor is regular, and that it was duly recorded.

Sufficient has already been remarked to show that there is no valid bill of exceptions in the case, and that the paper in the record called "finding of facts" was not signed or filed until the next Term after the general finding was made, and nearly five months after the judgment was rendered.

Redress here by writ of error can only be had when a party is aggrieved by some error in the foundation, proceedings, judgment or execution of a suit in a court of record; and it is for that reason that the bill of exceptions is allowed, in 140] order that *certain matters resting in parol may be incorporated into the record for the inspection of the proper appellate tribunal. Suydam v. Williamson, 20 How., 427, 15 L. ed., 978.

Power is vested in this court, where the find

Matters resting in parol, like the opinion of the court, are not a part of the record, and nothing is special, to inquire and determine, on writ ing therein contained can be assigned for error. Williams v. Norris, 12 Wheat., 118; Davis v. Packard, 6 Pet., 41; Medberry v. Ohio, 24 How., 414, 16 L. ed., 739.

Findings of fact in the form called special findings, like a special verdict, furnish the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment; but, where the finding is general, the losing party cannot claim the right to review any question of law arising in the case, except such as grow out of the rulings of the circuit court in the progress of the trial, which do not in any sense whatever include the general finding, nor the conclusions of the circuit court embodied in the general finding as the general finding is in the nature of a general verdict, and constitutes the foundation of the judgment.

No review of a judgment in such a case can be made here under the writ of error, unless it is accompanied by a special finding or an authorized statement of facts, without imposing upon this court the duty of hearing the whole case, law and fact, as on appeal in equity or admiralty, which would operate as a repeal of the Act of Congress authorizing parties to waive

of error, whether the facts found are sufficient to support the judgment; but a report of the evidence, without such special finding, will not give this court jurisdiction to re-examine that question; nor will the fact that the court below stated some of the facts in an opinion accompanying the judgment alter things in the least. it appearing that the facts exhibited in the opinion were stated, not as a special finding, but rather as a ground to show why the judge came to the conclusion set forth in the record. Dickinson v. Bk. [supra].

Argument to show that the facts exhibited in the opinion filed in the case, which are not stated as a special finding, are insufficient to give jurisdiction in such a case, is unnecessary, as that proposition is admitted by the defendants. Certain facts are stated in the opinion of the court which was filed in the case, but they are not stated as a special finding. Instead of that, they are merely facts advanced, as Mr. Justice Strong said in the case last cited, as reasons why the circuit court came to the conclusion that the plaintiffs were entitled to judgment for the amount of the insurance.

*Grant all that; and still it is insisted (142 by the defendants that it was entirely within the

power and discretion of the circuit court to make the order in question at the time it was made, and to put the findings of the court into more formal shape; but it is unfortunate for the defendants that the law is well settled the other way, nor do the authorities which the defendants cite, when properly applied, warrant any other conclusion.

Exceptions are prepared by the complaining party. Special findings are prepared by the court. Where the exception is duly taken and reserved at the trial, it may, in the discretion of the judge, be drawn out, and be signed or sealed by the judge afterwards. U. S. v. Breitling, 20 How., 252, 15 L. ed., 900. Decided cases to the same effect are numerous.

It is a settled principle, say the court, in Walton v. U. S., 9 Wheat., 651, cited by defendants, that no bill of exceptions is valid which is not for matter excepted to at the trial. We do not mean to say, remarked the court in that case, that the bill of exceptions should be formally drawn and signed before the trial is at an end. It will be sufficient if the exception be taken at the trial and noted by the court with the req uisite certainty; and, where that is done, it may be reduced to form, and be signed by the judge during the Term. Stanton v. Embry, 93 U. S., 548, 23 L. ed., 983.

of judgment, which was not satisfactory. Dissatisfaction arising, this court adopted the rule that, in all cases in which either party is entitled to appeal to the Supreme Court, "The Court of Claims shall make and file their finding of facts and their conclusions of law thereon in open court before or at the time they enter their judgment in the case," which provision, it is believed, is universally approved by the legal profession; but the requirement is much greater where the special finding is made by the circuit court, for the reason that the Act of Congress provides that the findings, whether general or special, shall have the same effect as the verdict of a jury, and no one ever supposed that the judgment might precede the return of the verdict on which it is required to be founded.

Mr. Justice Miller also dissents and concurs in this dissenting opinion.

Mr. Justice Field: I agree with Mr. Justice Clifford and Mr. Justice Miller that there were consider; but as the majority of the court no special findings in the record which we can reached a different conclusion, and hold that the case is properly before us on its merits, I am of opinion that the law is with the defendant-that the loss incurred with within the exception of the policy.

THE CONTINENTAL IMPROVEMENT
COMPANY, Plff. in Err.,

Authorities of the kind give no support whatever to the proposition of the defendants, in view of the facts of the case as they appear in the transcript. Judgment was rendered for the plaintiffs in the usual course, without any intimation from the court that any special finding would be filed in the case, or any request being made by the defendants for such a finding; and the record shows that the plaintiffs in the meantime had taken out execution for the amount of the judgment. Müller v. Ehlers, 91 U. S., 249, 23 L. ed., 319. Valid exceptions can never be allowed, unless taken at the trial; and they will never be sustained, unless completed Duties of railroads and travelers-degree of diliwithin the term.

Prompt action in respect to a statement of facts is also required; and, where it appeared that nearly three months had elapsed from the rendition of the judgment before it was filed, this court held that it was an irregularity, for 143] which the court *was bound to disregard it, and to treat it as no part of the record. Flanders v. Tweed, 9 Wall., 425, 19 L. ed., 678. Execution had issued in this case before the court granted the order that a special finding should be made, signed, and entered of record; and, inasmuch as the term in which the judgment was rendered had then expired, it is clear that the court below had not at that time any power to supply a special finding of facts. Noonan v. Bradley, 12 Wall., 121, 20 L. ed., 279; Washington Bridge Co. v. Stewart, 3 How., 413; Skillern v. May, 6 Cranch, 267; Ex parte Sibbald, 12 Pet., 488; Peck v. Sanderson, 18 How., 42, 15 L. ed., 262; Martin v. Hunter, 1 Wheat., 304; Roemer v. Simon, 91 U. S., 149, 23 L. ed., 267.

Support to the theory that the special finding, if any, in such a case should be prepared and filed before or at the time the judgment is rendered, is derived from the present rule of the Court of Claims. Prior to its adoption, the finding of facts in that court was sometimes prepared and filed subsequent to the rendition

V.

JOSEPH STEAD.

(See S. C., Reporter's ed., 161-168.)

gence-judge's charge.

1. The obligations, rights and duties of railroads, and travelers upon intersecting highways, are mutual and reciprocal, and no greater degree of care is required of the one than of the other.

2. Both parties are charged with the mutual duty of keeping a careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case.

3. When a judge, in his charge, explains the whole law applicable to the case in hand, he cannot be called upon to express it in the categorical form, based upon assumed facts, which counsel choose to present to him.

[No. 73.]

The appellee brought the action below to re- place to slacken their speed and sound the cover the damages done to himself and his whistle and ring the bell, than if the train were wagon, and recovered a verdict. The present running on regular time; and, on the other writ of error is brought to review the instruc-hand, that the party crossing with a team should tions given by the court to the jury on the trial. proceed with more caution and circumspection The case, as appears by the bill of exceptions, than if the crossing were in an open country, was substantially as follows: the collision oc- and not venture upon the track without ascercured in a cut about five feet in depth, in which taining that no train was approaching, or, at the wagon-road crossed the railroad on a level least, without using the means that common therewith, nearly at right angles, descending to prudence would dictate to ascertain such fact; it on each side by an excavation. The train was but that, if a train were not a regular one, no a special one, coming from the north, and did train being due at the time, the same degree of not stop at the station (which was 400 or 500 caution would not be expected on his part as if feet north of the crossing), and none of the regu- it were a regular train and on usual time. In lar trains were due at that time, although spe- short, the Judge charged that the obligations, cial trains were occasionally run over the road. rights and duties of railroads and travelers upon The plaintiff was going east, away from the highways crossing them are mutual and reciprovillage, following another wagon, and in ap- cal, and no greater degree of care is required of proaching the railroad track, could not see a the one *than of the other. He further [164 train coming from the north, by reason of the charged that the plaintiff could not have a vercut and intervening obstructions. There was dict unless the persons in charge of the train evidence tending to show that the plaintiff, were guilty of negligence or want of due care, though he looked to the southward (from which and unless the plaintiff himself were free from direction the next regular train was to come), any negligence or carelessness which contributed did not look northwardly; that his wagon pro- to the injury. The evidence of the case was duced much noise as it moved over the frozen fairly submitted to the jury in the light of the ground; that his hearing was somewhat im- principles thus announced. paired; and that he did not stop before attempting to cross the track; also, evidence tending to show that the engineer in charge of the train used all efforts in his power to stop it after he saw the plaintiff's wagon on the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed the train was running at the time, some witnesses testifying that it was at an unusual and improper rate, and others the contrary.

The counsel for the Railroad Company re163] quested the court to *adopt certain specific instructions, to the general effect that the plaintiff should have looked out for the train, and was chargeable with negligence in not having done so; that there was nothing peculiar in the crossing to forbid as high a rate of speed as would be proper in the case of other important highways; that an engineer is not bound to look to the right or left, but only ahead on the line of the railway, and has a right to expect that persons and teams will keep out of the way of the locomotive; and that it is the duty of those crossing the railroad to listen and look both ways along the railroad before going on it, and to ascertain whether a train is approaching or not.

This is the general scope of the charge; and we think it is in accordance with well settled law and with good sense. If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The The Judge refused to adopt the instructions speed of a train at a crossing should not be so framed by counsel, but charged, in effect, as great as to render unavailing the warning of its follows: that both parties were bound to ex- whistle and bell; and this caution is especially ercise such care as, under ordinary circum- applicable when their sound is obstructed by stances, would avoid danger; such care as men winds and other noises, and when intervening of common prudence and intelligence would ordi- objects prevent those who are approaching the narily use under like circumstances; that the railroad from seeing a coming train. In such amount of care required depended on the risk cases, if an unslackened speed is desirable, of danger; that, where the view was obstructed | watchmen should be stationed at the crossing. so that parties crossing the railroad could not On the other hand, those who are crossing a see an approaching train, the exercise of greater railroad track are bound to exercise ordinary care and caution was required on both sides; care and diligence to ascertain whether a train as well on the part of those having the manage- is approaching. They have, indeed, the greatest ment of the train as of those crossing the rail- incentives to caution, for their lives are in imroad; that the former should approach the cross-minent danger *if collision happen; and (165 ing at a less rate of speed, and use increased dil- hence it will not be presumed, without evidence, igence to give warning of their approach; and, that they do not exercise proper care in a parif the train was a special one, it was still more ticular case. But, notwithstanding the hazard, incumbent upon them in going through such a the infirmity of the human mind in ordinary men 95 U.S. U. S., Book 24.

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