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(113 Fed. 449.)

METROPOLITAN ST. RY. CO. V. HUDSON.
(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 22.

1. STREET RAILWAY-INJURY TO PASSENGER-INSTRUCTIONS.

Where, in an action for injuries to a passenger on a street car, the issues are whether plaintiff was injured by the careless starting of the car after it had stopped or by her own negligence in attempting to board it before it had stopped, it is error to instruct that if the car, even if not quite at a standstill, was moving with such extreme slowness that a person might fairly undertake to board it, and while plaintiff was about boarding it the conductor suddenly started it, so that it moved

forward with a jerk, defendant's negligence would be established. 2. SAME-APPEAL-ASSIGNMENT OF ERROR.

An assignment of errir complaining of an erroneous instruction is without merit where the court, on plaintiff's exception, qualified the in

struction, and plaintiff took no further exception. 3. SAME-MEASURE OF DAMAGES-INSTRUCTIONS.

In an action for injuries, an instruction not to award plaintiff any damages for hysteria not directly caused by the accident is properly refused, as it restricts the rec very to damages directly caused by the accident, while those indirectly resulting from it may also have been recoverable. In Error to the Circuit Court of the United States for the Southern District of New York.

Theo. H. Lord, for plaintiff in error.
J. Aspinwall Hodge, for defendant in error.

Before WALLACE, Circuit Judge, and TOWNSEND, District Judge.

WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment for the plaintiff in an action for negligence rendered upon the verdict of a jury. The only assignments of error which have been argued relate to an instruction given by the trial judge to the jury in respect to the negligence of the defendant, and his refusal to give one in respect to the question of damages requested by the defendant.

The issues upon the trial, aside from those relating to the damages, were whether the plaintiff was injured by the careless starting of the defendant's car after it had stopped to receive passengers, or whether she was injured by her own negligence in attempting to board it before it had come to a stop.

The trial judge instructed the jury that “if the car, even if not quite at a standstill

, was still moving with such extreme slowness that a person might fairly undertake to board it, and while plaintiff was about boarding it the conductor suddenly started it, so that it moved forward with a jerk,” negligence on the part of the defendant would be established.

This instruction was apparently given under the impression of the trial judge that the plaintiff may have received her injury while attempting to board the car after it had come to a stop and before it had got under much speed. The evidence did not authorize such a theory, and, if it had, we think the instruction would not have been correct without further qualification. Unless a car has reached one of its regular stopping places, or its speed has been slowed to permit an intending passenger to board it, or some invitation, express or implied, to board it has been given by those in charge, the conductor is under no obligation to anticipate that any person will attempt to board; and if, in ignorance of such an attempt, he causes the motorman suddenly to put on speed, he does not violate any duty towards an intending passenger. Conductors of street cars are at liberty to regulate the movements of their cars as they see fit so long as they do not violate their duties to others. If, however, while a car is proceeding slowly, the conductor is made aware that an intending passenger is attempting to board it, although it may not be his duty to stop the car, common prudence certainly forbids that he start it suddenly forward. No man is at liberty to do an act unnecessarily which he knows or ought to know is likely to imperil the person of another.

Notwithstanding the instruction was incorrect, in view of the issues which were presented by the evidence, we think the assignment of error based upon it is not well taken. The attention of the trial judge was not called to the erroneous theory of the facts suggested by the instruction, and when the plaintiff excepted to the instruction the trial judge qualified it, and the plaintiff took no further exception. Obviously, the plaintiff acquiesced in the instruction as qualified.

The other assignment of error is based upon the refusal of the trial judge to instruct the jury not to award the plaintiff "any damages for hysteria not directly caused by the accident.” He did not instruct them specifically whether the hysteria was or was not an element of damages, but he defined adequately the general rule of compensation in actions for personal injury, and no exception was taken to that portion of the charge. The instruction was one of a character which the judge at a trial is at liberty to give or withhold at his discretion. It is open, however, to the criticism that it sought to restrict the recovery to damages directly caused by the accident, while those indirectly resulting from it may also have been recoverable. The author of the initial cause is responsible for the indirect damages which are its natural consequences. The suggestion that the instructions given did not confine the consideration of the jury to the damages arising solely from the accident is hypercritical. The only controversy as regarded damages was in respect to the extent of the injuries caused by the defendant's acts, and to urge that the jury might have given damages for hysteria not thus caused is an academic proposition, and does not appeal to common sense.

We conclude that the exceptions by the defendant were not well taken, and the judgment should be affirmed.

(113 Fed. $51.)

MCKNIGHT v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. February 10, 1902.) 1. CRIMINAL LAW-WRIT OF ERROR_STAY OF PROCEEDINGS-BAIL.

Under Rev. St. § 1007, providing that a writ of error, when granted within 60 days after the rendition of the judgment complained of, or afterwards, with the permission (f a judge of the appellate court, shall operate as a supersedeas, and under rule 38 of the circuit court of appeals (31 C. C. A. cviii., 90 Fed. cviii.) such writ, in the case of a conviction of a crime not capital, stays execution, but such stay of proceedings does not involve the question as to whether, pending the writ

of error, defendant shall be detained or go at large on bail. 2. SAME-POWER OF COURT.

Under the act to establish the circuit court of appeals (26 Stat. 829), section 11, providing that all provisions of law in force regulating appeals or writs of error, including provisions for bonds or other securities, shall regulate such proceedings in that court, and rule 38 of such court, the court has the power, and it is generally its duty, to admit to bail, after

conviction of a crime not capital, pending a writ of error. 3. SAME-APPLICATION FOR ADMISSION TO BAIL.

Where defendant was convicted of embezzling funds of a national bank, and the trial court refused to admit him to bail pending a writ of error, in the absence of some great urgency, a further application for

admission to bail should be made to the appellate court. 4. SAME-TIME.

Where one convicted of crime is admitted to bail pending a writ of error, the bail should be allowed for a time only sufficient to insure the filing of the transcript in the court of appeals within a reasonable time, reserving the question of further bail until the lapse of the time thus

fixed. 5. SAME-THIRD CONVICTION.

The fact that defendant has been tried and convicted three times on the same indictment for embezzling funds of a national bank is not sufficient ground for denying bail pending a third writ of error. On Application for Bail Pending Writ of Error. See all Fed. 735. W. C. P. Breckinridge, A. E. Richards, and A. G. Ronald, for plaintiff in error.

R. D. Hill, U. S. Atty., for the United States.
Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON, Circuit Judge. The plaintiff in error has been convicted under an indictment charging embezzlement of funds of a national bank. After writ of error allowed and citation served, he applied to the court below for bail, pending his writ of error, but bail was refused him. Application was then made for bail to one of the members of this court, who, preferring that the application should be made to this court, suggested to the trial judge the propriety of admitting the petitioner to bail until such time as this court might have opportunity to hear and determine an application from the plaintiff in error. Upon this suggestion the trial judge acted, and the plaintiff in error has been admitted to bail until February 12th next. He has now filed a petition praying to be allowed to stand upon bail pending his writ of error. Under the rules of this court, and in due course os procedure, the petitioner's bail must expire long before a hearing upon his writ of error. In such circumstances it becomes necessary to determine whether he shall, pending his writ of error, be allowed to give bail for his appearance in the district court after the determination of his case in this court. The writ of error, when filed within 60 days of the judgment complained of, operates as a supersedeas or stay of proceedings; and a writ of error from this court to the circuit or district court, in the case of the conviction of a crime not capital, is a matter of right without giving any security. Section 1007, Rev. St.; In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409; Hudson v. Parker, 156 U. S. 277, 283, 15 Sup. Ct. 450, 39 L. Ed. 424; rule 38 of this court (31 C. C. A. cviii., co Fed. cviii.).

If the writ of error is not allowed until after the lapse of 60 days, it will equaily operate as a supersedeas, provided the judge signing the citation shall so direct. But the stay of proceedings simply prevents the execution of the judgment of the trial court, and by no means involves the question as to whether pending the writ of error he shall be detained or go at large upon bail. Neither the power nor the general duty to admit to bail after conviction, and pending a writ of error, can be regarded as open, in view of the thirty-sixth rule of the supreme court, and the conclusions announced by that court in Hudson v. Parker, where Mr. Justice Gray, after a consideration of the statutory provisions in respect of bail, said:

“But, however it may be in a capital case, it is quite clear, in view of all the legislation on the subject of bail, that congress must have intended that under the act of 1891 (26 Stat. 827), in cases of crimes not capital, and therefore bailable of right before conviction, bail might be taken, upon writ of error, by order of the proper court, justice, or judge. And we are of opinion that any justice of this court, having power, by the acts of congress, to allow the writ of error, to issue the citation, to take the security required, by law, and to grant a supersedeas, has the authority, as incidental to the exercise of this power, to order the plaintiff in error to be admitted to ba il, independently of any rule of court upon the subject, and that this authority is recognized in the first paragraph of rule 36."

Rule 38 of this court is, in substance, rule 36 (31 C. C. A. cvii., 90 Fed. cvii.) of the supreme court. That this court has the power, by virtue of its jurisdiction over the proceedings in error, to admit to bail in criminal cases pending upon writ of error, is indisputable. The eleventh section of the act to establish circuit courts of appeals (26 Stat. 829) provides that:

“All provisions of law now in force regulating the methods and systems of review, through appeals or writs of error, shall regulate the method and system of appeals and writs of error, provided for in this act, in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge of the circuit court of appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively.”

It follows from this broad power that this court, or its judges, may exercise, in aid of its appellate jurisdiction in criminal cases, the same powers in regard to the allowing of writs of error, or admission to bail pending a writ of error, which were formerly exercised in appellate criminal proceedings by the supreme court or its justices, by virtue of the provisions of statutory law in force, or by implication from the grant of jurisdiction over proceedings in error. Rule 36, said the supreme court in Hudson v. Parker, "was so framed as to give effect to the appellate jurisdiction conferred by the act of 1891 in the manner most consistent with the provisions of the various acts oi congress concerning the same matter.” The same rule has been adopted by this court to give effect to the jurisdiction conferred upon it by the act of 1891, and by the act of January 20, 1897 (29 Stat. 492), withdrawing from the supreme court jurisdiction of criminal cases not capital, and conferring the same on this court. There seems to have been no disagreement in the supreme court in respect of the power of the supreme court to admit to bail in criminal cases pending on writ of error; for Mr. Justice Brewer, in his dissenting opinion, expressed his agreement with the assertion that the court “has power to admit to bail in criminal cases pending in error," though he deduced the power “to let to bail solely from the grant of jurisdiction over the proceedings in error,” and differed with the majority in respect to the power of a single justice, not assigned to the circuit to which the writ of error issued. From whatever source the power comes it is clear that this court, as an appellate court, has the power to admit to bail pending a writ of error. The granting of the writ of error in itself stays the execution of the sentence of the trial court. Detention pending the writ is only for the purpose of securing the attendance of the convicted person after the determination of his proceedings in error. If this can or will be done by requiring bail, there is no excuse for refusing or denying such relief. This seems to be the view taken of the thing and policy of the statute of the United States; for in Hudson v. Parker, cited above, the court said:

The statutes of the United States have been framed upon this the ry: that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error."

The fact that bail has been refused by the trial judge, though not conclusive, is a fact which would make it more seemly, in the absence of some great urgency, that further application should be made to the appellate court, which, by virtue of its appellate jurisdiction, may properly be called upon to make all proper orders for the custody of the defendant pending the hearing of his writ of error.

We quite agree with the counsel for the government, that all presumption of innocence is gone after conviction, and that proceedings resorted to for the mere purpose of delay should be discouraged. We do not, however, deem it wise, or in harmony with the humane principles of our law, that proceedings to review alleged error committed upon the trial of a defendant should be so far discouraged as to altogether deny the right to bail in that class of cases deemed bailable before conviction. That it should be made the interest of defendants, after conviction, to speed the hearing in the appellate court, we quite agree, and all unnecessary delays, due to the conduct of the defendant seeking a review, may well be discouraged by allowing bail for a time only sufficient to insure the filing of the transcript in the court

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