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vessels were intended, and that by reason of the delay in sailing, caused by the defendant's negligence, the vessels encountered a violent hurricane on the voyage to Porto Rico, by which all of said vessels were severely injured, and the two barges totally lost, to the great damage of the plaintiffs. The case was matured and came on to be heard on the 16th day of April, 1901, when, by agreement of the parties, the matters in issue were tried by the court without a jury. On the 6th day of May, 1901, the rulings and findings of the court, on the matters so submitted to it, were duly made and filed, and on the 27th day of May, 1901, judgment was entered for the plaintiffs for the sum found by the court in their favor. From such judgment the said plaintiffs sued out the writ of error we are now to dispose of. The court below found that the tug should have been completed for delivery on February 1, 1900, and the barges on April I, 1900; that there was an inexcusable delay in the delivery of the tug of 5 months and 20 days, and in the delivery of the barges of 2 months. Exceptions to the rulings and findings of the court in a number of particulars were duly taken by the plaintiffs, and they, by their assignments of error, insist that the damages allowed by the court were entirely inadequate.

With the conclusion reached by the court below that there was an inexcusable delay in the delivery by the defendant of the vessels. contracted for by the plaintiffs, we are in entire accord. Therefore the ascertainment of the proper measure of damages applicable to the circumstances found to exist in the present case will dispose of most of the assignments of error, as there were no exceptions by either plaintiffs or defendant below to the action of the court on the prayers submitted. The court below rejected the plaintiffs' claim for damages based upon the fact that the vessels were intended to be used by the plaintiffs in connection with their sugar business in Porto Rico, and that the failure to deliver the vessels within the time stipulated in the contract subjected the plaintiffs to great expense for freight and lighterage, and deprived them of profits that they would otherwise have made; and also rejected the claim for damages alleged to have been caused by the delay in sailing, and the damages, if any, of the hurricane season, charged to have been caused thereby. It will be observed that the contracts required the delivery of the vessels at Sparrow's Point, and not in Porto Rico, and yet much of the evidence offered by the plaintiffs tended to prove the unusual risk and the great cost of taking a tug as small as the one so built and delivered, and barges as shallow as those contracted for, on a voyage of over 1,200 miles from the Chesapeake Bay to Porto Rico. The evidence offered on the subject of rental value had reference to the use of the vessels at Porto Rico, where it was conceded they were intended for use; but their arrival at Porto Rico, and their profitable. utilization at that point, were so uncertain, and so entirely conjectural as to necessarily exclude all claims for loss founded upon their use in that country. The contracts made no reference to the arrival of the vessels at Porto Rico, but, on the contrary, distinctly provided for the delivery of the same before any effort was made to remove them to Porto Rico. It does not appear from the evidence that a

tug could have been rented in Porto Rican waters during the sugar season of 1900 at any price, and it appears that there were very few barges to be had there under any circumstances, and it is quite evident that such conditions existed as a result of the great cost and the extreme risk attending the efforts to take such vessels from the United States to that section.

In cases of this character, speculative damages are, as a rule, excluded. The indemnity of the vendee is the actual loss sustained by reason of the vendor failing to comply with his contract; and, where there is an absence of fraud, the vendee has never been allowed damages remotely consequential, and resting in mere speculation. In such cases parties should not be held liable for losses which they could not reasonably have anticipated, and which they did not contemplate when the contract was entered into. It is hardly possible that the damages now claimed by the plaintiffs in error could have been in the contemplation of either of the parties to the contracts under which the vessels before mentioned were constructed. Naturally, the vendor in this case presumed that, in the event of a breach on its part, the damages awarded would be proportionate to such recovery as would be allowed it in case of a breach by the vendee in failing to pay the purchase money when the vessels were delivered at Sparrow's Point, and it is well established that such recovery would be limited to the contract price of the vessels, with legal interest thereon. Damages of the character now insisted upon by the plaintiffs in error are so uncertain, and have reference to so many unforeseen and changing contingencies, that no reasonable basis for properly ascertaining their amount can be established. It would be a mere calculation of chances by juries and by courts, producing results not conducive to the due administration of justice, and deterring prudent men from making contracts like those now under consideration, to the great detriment of business and commercial affairs. It does not appear from the contracts, nor from the correspondence preceding them, nor from the conduct of the parties during the time the vessels were being built, that the defendant below was expected to see to their safe arrival at Porto Rico, or that there would be any special loss to the plaintiffs if delay should occur in the time of delivery. No penalty for delay is found in the contracts, and certainly the plaintiffs did not act as if they regarded time as material, or considered prompt delivery of the completed vessels as essential. the contrary, they directed various changes to be made in the manner of the construction of the tug,-alterations which they must have realized would cause considerable delay,-and after the completion of the barges they did not take possession of them until six weeks had elapsed. We refer to these facts, fully disclosed by the evidence, for the purpose of showing the absence of such special circumstances as would make other damages than those we have indicated, proper to be assessed because of the breach by the defendant relating to the delay in delivering the vessels. The court below allowed the plaintiffs the sum representing the interest at 6 per cent. per annum, on the payments made by them prior to the delivery of the vessels, for the full time resulting from the delays, and we find no error in that judgment.

The following cases bear upon the questions raised by the assignments of error, and, in our opinion, direct the conclusion we have reached concerning them: Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; Taylor v. Maguire, 12 Mo. 313: Hadley v. Baxendale, 9 Exch. 341; Primrose v. Telegraph Co., 154 U. S. 1, 29, 14 Sup. Ct. 1098, 38 L. Ed. 883; The Ceres, 19 C. C. A. 243, 72 Fed. 936, 943; Drug Co. v. Byrd, 34 C. C. A. 351, 92 Fed. 290; Railroad Co. v. Bucki, 16 C. C. A. 42, 68 Fed. 864; Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635; Oil Co. v. Schlens, 59 Md. 31, 43 Am. Rep. 537; Blanchard v. Ely, 21 Wend. 342, 34 Am. Dec. 250; Trust Co. v. Clark, 34 C. C. A. 354, 92 Fed. 293.

There is no error in the judgment complained of, and the same is affirmed.

(113 Fed. 76.)

SOUTHERN RY. CO. v. CRAIG

(Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 404.

1. MASTER AND SERVANT-RAILROAD TRAINS-MODE OF OPERATION-AVOIDING COLLISIONS BETWEEN TRAINS-ORDINARY CARE.

Plaintiff's intestate, a railroad conductor on an extra train, had orders to precede a delayed regular train into defendant's yards. No instructions were given to look out for any other train on entering the yards. Intestate was killed in a collision with a switching engine in the yards. No notice of the approach of the extra train had been given to those on the switch engine. The company's rules, known to intestate, gave the right of way to switch engines in the yards, and required that extra trains must approach and run through yard limits under full control. The evidence as to whether intestate's train was under full control was conflicting. The night of the accident was shown to have been dark and foggy. Held that, notwithstanding the rules of the company, it was the duty of the crew of the switching engine to exercise ordinary care in avoiding collisions with incoming trains.

2. SAME-ORDINARY CARE-INSTRUCTIONS.

An instruction that the crew of the switching engine should take proper precautions against collisions with incoming trains, the character of such precautions to be determined by the circumstances of the night, the heavy fog, and the difficulty in hearing and seeing signals, was correct.

3. SAME-OBSERVANCE OF RULES-QUESTION FOR JURY.

The question as to whether intestate observed the rule of having his train under full control on entering the yards was for the jury. 4. SAME-EXCESSIVE DAMAGES-APPEAL.

Where, in an action for the death of plaintiff's intestate, the instructions are proper, and the record shows no attempt to magnify the injury or pain, nor any appeal to the passion, prejudice, or sympathy of the jury, nor indication that the jurors were so influenced, the appellate court will not disturb a verdict on the ground of excessive damages. In Error to the Circuit Court of the United States for the District of South Carolina, at Columbia.

Thomas P. Cothran, for plaintiff in error.

J. E. McDonald, for defendant in error.

Before GOFF, Circuit Judge, and MORRIS and BOYD, District Judges.

BOYD, District Judge. This action was commenced in the court of common pleas for Fafax county, in the state of South Carolina, to recover damage: for the death of Laurence S. Harrison, the intestate of Craig, the defendant in error, alleged to have been caused by the negligence of the plaintiff in error on the 15th of November, 1899. Upon petition of the plaintiff in error, the Southern Railway Company, the case was removed to the circuit court of the United States for the district of South Carolina for trial. A trial was had before Simonton, circuit judge, and a jury, at Columbia, S. C., on the 13th and 14th days of December, 1900, and a verdict. for $12,500 returned by the jury in favor of the administrator, and judgment was thereupon rendered by the court for said sum as damages against the plaintiff in error. The case comes here for review upon a writ of error sued out by the railroad company.

Harrison, the intestate of the administrator, Craig, was in the employment of the Southern Railway Company as a conductor, and on 15th of November, 1899, was in charge of a ballast or gravel train on the railroad of the company. Intestate's train was numbered and called "Extra 555," that being the number of the locomotive attached to it and operated by J. W. Fetzer, engineer. During the afternoon of the 15th of November, 1899, Extra No. 555 was engaged in work along the line of the Southern Railway near a place called "Pomaria," about 30 miles from Columbia. At 8:22 p. m. on the said day an order was issued by the railway company's superintendent, and received by intestate and his engineer, directing them to run Extra 555 from Pomaria to Columbia. At Allston, a station on the route from Pomaria to Columbia, an order was received by intestate and his engineer, at 9:02 p. m., to the effect that their train would run ahead of train No. 62, the latter being a regular passenger train, due at Columbia at noon that day, but which was more than 10 hours late. On the way from Allston to Columbia, at Bookman's, at the request of the engineer, who had been recently employed by the railway company, and who was new upon the yard and block system, the intestate left his caboose, and went upon the locomotive to pilot the engine through the yard at Columbia. Extra 555, consisting of 17 cars, loaded with ballast, drawn by the locomotive in charge of Fetzer, reached Columbia at 10:55 p. m. The night was very dark and foggy, and as Extra 555 was moving into Columbia on the main track, and having entered the limits of the yard, the switch engine which was being operated on the yard, whilst running backward, pulling a number of cars from a side track onto the main line, collided with intestate's train, and he was killed in the collision. There was conflict of testimony as to the rate of speed at which the two trains were running when the collision took place. Fetzer, the engineer on Extra 555, testified that his train was running at about 4 miles an hour; that he had it under full control; and that, from the way the engines came together, it was his opinion that the speed of the switch engine at the time was 12 or 15 miles an hour. The fireman on Extra 555 testified that he was on the train, and that it was running 10 miles an hour; and Hart, the flagman on the same train, testified

that it was running 15 miles an hour. Foulke, the engineer, and Stevens, the fireman, on the switch eng e, both testified that its speed was only 4 or 5 miles an hour. È a 555, as it approached the place of collision, was coming up a heavy grade, and as it entered the yard at Columbia it made no stop to ascertain if the track was clear, and no torpedoes were set or flagmen stationed to notify the extra not to proceed. As the extra was running on the main line after it entered the yard limits, the engineer, Fetzer, saw the light of the switch engine coming backward, running onto the line, about 50 yards in front, and he then put on the emergency air brakes, blew his whistle, and reversed his engine, but this was too late to prevent the collision. The operator of the switch engine was not notified by the superintendent that Extra 555 was coming. There was a rule of the company which gave the switch engine the right of way within the yard limits in Columbia over all trains except regular trains, and it was shown upon the trial that intestate had notice of this rule. There was also a rule of the company that extra trains must approach and run through yard limits under full control. Intestate also had notice of this rule.

At the close of the testimony the counsel for plaintiff in error requested the court to instruct the jury as follows:

"Under the rules the switch engine had the right to the use of the main line, protecting itself against only regular trains. The extra was required to proceed through the yard under full control. This requirement applied, not only to the speed of the train, but to such precautions in addition as the dark and foggy night demanded. The switch engine, having the right of way over the extra, it was the duty of the other to be on the lookout for the switch engine, and to take such precautions as the situation demanded to prevent a collision."

The court responded to the said request for instructions as follows:

"Yes, but it did not relieve the switching engine from the exercise of ordinary care in avoiding collisions with trains entering the yard."

To this instruction modifying the defendant's said request the defendant duly excepted before the jury retired. The defendant further requested the court to instruct the jury as follows:

"The rules of the company do not require notice of the movements of extra trains to be given to the crew of a switch engine working within the yard limits, and it is not negligence on the part of the defendant not to have given such notice."

The court charged said request for instructions, but added the following:

"But the crew of the switching engine should take all proper precautions against collisions with trains entering the yard, the character of these precautions to be determined by the circumstances of the night, the heavy fog, and the difficulty in hearing and seeing signals.”

To this instruction modifying the defendant's said request the defendant duly excepted before the jury retired.

After the verdict the defendant moved for a new trial upon the following grounds: (1) That the collision was due to the negligence of the engineer of the extra engine, a fellow servant of the 51 C.C.A.-5

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