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and when the engine had slackened to a very slow rate of speedbarely moving, as some of the witnesses say; going one to two miles an hour, as others say—alighted from the pilot, and stepped upon the ties in front of the engine, took three or four steps forward, when his foot slipped between the ties, where he was held fast, and run over by the engine, suffering the loss of the lower part of both legs. In view of this state of the case and the guarded charge of the court, we think now, as we did upon the former hearing, that it was not error to submit to the jury the question of the negligence of the railroad company in failing to provide a reasonably safe place for the defendant in error to work, as well also the alleged negligence of the defendant in error in stepping upon the track in front of an engine in view of the situation, and the fact that the testimony tended to show that the engine was running very slowly.

Upon the rehearing the question principally argued was as to the admission of certain testimony. The plaintiff, being on the stand in his own behalf, was permitted to answer the question as to what he did immediately before the accident:

"Q. What, if anything, did he [the engineer) say to you about making the switch? A. He told me to hurry up, and go out in front of the engine, and get off the front end of the engine, and get the switch over as soon as possible, so we could get in out of the way of No. 4 without stopping."

The weight to be given this testimony is carefully limited by the trial judge in his instructions to the jury. The judge said:

“The engineer had no right to direct him to do an obviously dangerous thing, and the engineer's direction would not justify him in doing an obviously dangerous thing. Nothing can justify that, unless, possibly, an emergency such as would justify a conductor in undertaking to save the lives of his passengers. But if he said he was in a hurry, that is simply a circumstance constituting part of the situation in the light of which you will look at this question. So that when you have taken all the circumstances just as they were, if you think he exercised that care and caution that ought to have been exercised and ought to be expected of a reasonably prudent man in just that situation, then he would not be guilty of negligence, and if he did not do that he would be; and, if he is guilty of it, it defeats his suit.”

The trial judge was of the opinion that the engineer was not in authority over the brakeman in such wise that he would be a superior for whose negligence the railroad company could be held responsible under the Ohio statutes, and the testimony was admitted for the sole purpose of throwing light upon the alleged contributory negligence of the defendant in error. For this purpose, we think, it was competent. Negligence consists in the doing of that which a man of ordinary prudence, under the same or similar circumstances, would not do, or in not doing that which ordinary prudence requires in the same or similar circumstances. In order to judge of the conduct of an individual under given conditions, and to determine whether the same is or is not negligence, it is necessary that the trier should be advised of the very situation in which the person charged with negligence is placed at the time; for it is in the light of such circumstances that his conduct must be judged. The question of contributory negligence is usually one of fact, and only becomes one of law when the circumstances are such that fair-minded men can draw no other inference than that of negligence from the conduct in question. There is no exact standard of conduct which will determine whether one is guilty of negligence, applicable to all cases. It is of the highest importance that the conduct of one charged with negligence shall be viewed in the light of the situation in which he is placed at the time. In this case it appears that the engineer who made this statement to the brakeman, although he may not have been a superior servant for whose conduct the company would be responsible under the Ohio law, nevertheless was clothed with authority to direct the front brakeman to turn the switch, to tell him when he wished this to be done, and upon receiving such directions it was the duty of the brakeman to go forward for that purpose. It is true that no such direction would justify the brakeman in exposing himself to certain injury or self-evident danger in the discharge of his duties. It was a circumstance, however, which, with others, was entitled to weight in enabling the jury to determine whether the defendant in error, in choosing to go upon the track in front of the locomotive was guilty of negligence or not. The condition of the runway, the apparent smoothness of the track, the slow rate of speed at which the engine was moving, the order of the engineer to act promptly in throwing the switch that the train might go upon the side track out of the way of the coming train, were all pertinent circumstances to enable the jury to determine the situation, and the conditions under which the defendant in error acted at the time of his injury. The charge of the judge carefully limited the admission of this testimony to this purpose. It was not admitted as a ground of recovery against the railroad company, but solely for the purpose of aiding the jury in determining the question of contributory negligence on the part of the defendant in error. In Railroad Co. v. Herrick, 49 Ohio St. 25, 29 N. E. 1052, the supreme court of Ohio held it competent to show that one who was charged with contributory negligence in crossing a railroad track to take a train upon another track of the company had been informed by a messenger not connected with the railroad company that the train which was expected upon the track which he was crossing was late. This testimony was admitted, not to show negligence on the part of the railroad company, but for the purpose of enabling the jury to weigh the conduct of the plaintiff in the light of the circumstances which surrounded him at the time. Limited as it was by the charge of the judge, we think the statement of the engineer was competent.

It is said that this conclusion is in direct opposition to two cases decided in the supreme court of the United States: Railroad Co. v. Jones, 95 U. S., 439, 24 L. Ed. 506, and Coyne v. Railroad Co., 133 U. S., 372, 10 Sup. Ct. 382, 33 L. Ed. 651.' In the former of these cases the plaintiff, who was a laborer on a work train, returning from work in the evening, rode upon the pilot of the engine, and while there was injured by some cars standing in a tunnel

. He tried to excuse his alleged negligence in riding in such a place by showing that the foreman directed him to "jump on anywhere; that they were behind time, and must hurry." The supreme court held that such direction was no excuse for the plaintiff in getting on the pilot of the engine when there was ample room for him in the car, and that he needlessly exposed himself to the injury which was due to his own carelessness and folly. In the Coyne Case the action was brought to recover for the alleged negligence of one McDonald, a boss, under whose directions the plaintiff, with others, was engaged in lifting rails to a flat car. McDonald ordered the plaintiff and others to make haste, and they commenced to lift the rails, which they were accustomed to raise by concerted action upon the order of VcDonald, but, hurried, and agitated by the curses of McDonald, they threw the rail at one end with great force, and at the other with less force, so that it struck the end of the car, and fell, injuring the plaintiff. The supreme court held that there was nothing in this connection to show the negligence of McDonald, but that the testimony rather tended to show the injury to have resulted to the plaintiff because of the failure of himself and fellow servants to wait for the command and lift together. In the case of Railroad Co. v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82, Mr. Justice Peckham states the reasons upon which the case of Railroad Co. v. Jones, supra, was decided, and also holds in the case then under consideration that it was competent to show that a laborer who had jumped from a moving train, receiving injuries, had been ordered so to do by the foreman in charge, and that this direction was competent to be considered by the jury in determining whether the plaintiff had been guilty of negligence contributing to the injury. It is true that the direction to jump in that case was given by one in authority over the plaintiff. In the case at bar there was testimony tending to show such relation between the engineer and the brakeman that it seems to us competent to permit the jury to consider this statement as a circumstance in determining the alleged contributory negligence of the plaintiff.

We find no error in the record to the prejudice of the plaintiff in error, and the judgment will be affirmed.

(113 Fed. 273.)

TELLER V. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit. December 30, 1901.)

No. 1,537.
1. Public LANDS-TIMBER-CUTTING-INTENT- MISDEMEANOR-CHARGE.

Under Rev. St. 1878, $ 2161, 20 Stat. 89, and 27 Stat. 318, making it a misdemeanor for any person to cut timber on any lands of the United States situate in any of the public-land states with intent to export or dispese of the same, where the cutting is admitted, the only intent necessary to show is the intent to export or dispose of the tim

ber. 2. Same-EVIDENCE-PURCHASE OF OTHER LANDS.

On the trial of one accused of unlawfully cutting timber on land of the United States, evidence that about the time of the cutting defendant purchased and paid for the full quantity of similar land, which he could purchase under the act of June 3, 1878, is inadmissible to show that he would not intentionally commit a trespass.

3. SAME-VIOLATION OF LAW-Custom.

On the trial of one accused of unlawfully cutting timber on land of the United States, evidence of a custom in that locality, known to the general land office, of entering on land and cutting the timber therefrom before patent was obtained, is inadmissible, since a custom to

violate the law cannot justify itself. 4. SAME-HONEST INTENT.

Where defendant unlawfully cut timber on public land, the fact that he acted in accordance with a general custom in that locality is not

evidence of an honest intent on his part 5. SAME.

Where defendant unlawfully cut timber on public land, the fact that before cutting he endeavored to ascertain whether the land was surveyed, and also notified a special agent of the government that he was cutting the timber, and was not warned off for three weeks, is not evi

dence of an honest intent. 6. SAME-CHARGE.

On the trial of defendant for unlawfully cutting timber on pubilc land, the court charged that, in order to convict, the jury must find that there existed in his mind a willful and wrongful purpose to obtain the timber in violation of law; and that if he entered on public land knowing it was such, without having complied with tile provisions of law giving him a right to do so, and cut timber therefrom, they would be authorized to find the requisite criminal intent. Hola, that such charge fairly stated the law, and was as favorable to defendant as he

was entitled to. 7. SAME-EviDENCE-INTENT.

Where defendant admits that he had cut timber on 300 acres of unsurveyed government land, to which he had no claim or color of title, and there is evidence that he was informed by the register of the land office that he could not acquire title because the lands were not open to entry, and that he promised his workmen that he would stand be. tween them and the government, and that he had fuily exhausted all his privileges of purchasing such lands, the intent constituting the offense of unlawfully cutting timber on government land, defined by

Rev. St. § 2461, and Act June 3, 1878, is sufficiently shown. 8. SAVE - APPLICATION TO PURCHASE-Right to CUT TIMBER BEFORE PATENT

LICENSE TO CUT.

An occupant of a mineral claim, who has applied for a patent before the purchase price is paid and before he receives a certificate, has no right to cut the timber on such claim with intent to export or remove the same, and a license from him to so cut the timber gives no pro

tection to the licensee as against the governnient. 9. SAME-MINERAL CLAIM-SEPARATION FROM PUBLIC DOMAIN.

The exclusive right to occupy and work a mineral claim, given to the locator by the mining laws during his occupancy, does not segregate such claim from the public domain, so as to exclude such land from the operation of Rev. St. § 2461, 20 Stat. 89, and 27 Stat. 348, making it a misdemeanor for any person to cut timber on the public lands.

In Error to the District Court of the United States for the District of Wyoming

Willard Teller (Clayton C. Dorsey, on the brief), for plaintiff in error.

Timothy F. Burke, for the United States.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS, District Judge. On November 25, 1899, a criminal information was filed in the district court of the United States for the district of Wyoming against John C. Teller, the plaintiff in error, charging him with having, between January and September of the year 1898, willfully and unlawfully cut and procured to be cut 150,000 feet of timber growing on the public lands of the United States in said district, with intent to export and dispose of the same. In due course a trial was had, the defendant found guilty, and sentenced to pay a fine of $1,000.

The statutes under which this information was lodged-Rev. St. 1878, § 2461; Act June 3, 1878 (20 Stat. 89); and Act Aug. 4, 1892 (27 Stat. 348)—make it a misdemeanor for any person to cut or procure to be cut timber growing on any lands of the United States situate in any of the "public-land States” with intent to export or dispose of the same. The defendant is accused of cutting timber from two certain tracts of public land in Carbon county, Wyo., one located on Cottonwood creek, and supposed to have been land subject to entry and sale under the act of June 3, 1878, commonly known as the “Stone and Timber Act," and the other being a certain mining claim known as the “Montezuma Placer.” The record shows that an admission was made by the defendant at the trial "that he cut timber on 300 acres of unsurveyed government land to which he had no claim or color of title.” This admission relates to the cutting on the first-mentioned tract, located on Cottonwood creek. The trial court charged the jury that, before they could convict the defendant, they must find that there existed in his mind “a willfull and wrongful purpose to obtain the timber in violation of the law"; and also that, "if the defendant entered upon the lands of the United States, knowing the same to be a part of the public domain of the United States, and without complying with the requirements of the statute, or attempting to do so, cut, or caused to be cut, timber growing thereon, you will be authorized to find that such cutting was willfull and intentional, and if you do so find the defendant would be guilty, and you should say so in your verdict.” In other words, the trial court practically instructed the jury that the intentional cutting of timber found growing on lands known by the person cutting the same to be a part of the public domain constituted a misdemeanor denounced by law. The defendant takes issue with this declaration, and contends that the jury should have been told that there must have been an actual evil or criminal intent, or bad purpose, amounting to moral culpability, in order to convict, and that the court erred in excluding evidence tending to show that the defendant, although cutting timber from lands known by him to have been public lands, cut the same with an honest purpose. The particular facts offered to be proved and relied on by defendant to establish such honest purpose with respect to the cutting from the first-mentioned land are as follows: In June, 1898, the defendant entered 160 acres, and four other persons each entered 160 acres of the same character of lands lying in the near vicinity to those upon Cottonwood creek now in question, for which defendant paid to the United States the price required by the stone and timber

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