# Indianapolis and St. Louis Railroad Company v. Horst

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United States Supreme Court
93 U.S. 291
Indianapolis and St. Louis Railroad Company v. Horst
ERROR to the Circuit Court of the United States for the District of Indiana.
This was an action by the defendant in error against the Indianapolis and St. Louis Railroad Company for injuries received while travelling on a cattle-train, and resulted in a verdict against the company for $8,000; whereupon it brought the case here. The facts are stated, and the assignment of errors referred to, in the opinion of the court.
Argued by Mr. W. A. Brown and Mr. John T. Dye for the plaintiff in error.
1. It was error for the court to instruct the jury that a person taking a cattle-train is entitled to the highest possible degree of care and diligence, regardless of the kind of train he takes. Railroad Co. v. Lockwood, 17 Wall. 357; Unger v. Forty-second St., &c. R. R. Co., 51 N. Y. 502; Hegeman v. Western R. R. Corporation, 13 id. 9; Lebanon v. East Boston Ferry Co., 11 Allen, 515; Ford v. London & South-western Railway Co., 2 Fost. & Find. 830; Warren v. Fitchburg R. R. Co., 8 Allen, 230; Simmons v. New Bedford, Vineyard, & Nantucket Company, 97 Mass. 368; Galena & Chicago Union Railway Co. v. Fay, 26 Ill. 568; Fuller v. Talbott, 23 id. 357; Pitt., Cin. & St. L. R. R. Co. v. Thompson, 56 id. 168; Dunn v. Grand Trunk Railway Co., 58 Me. 187; Chicago, B. & Q. R. R. Co v. Hazzard, 26 Ill. 376.
2. The court erred in refusing to instruct the jury that their investigation as to the negligence of defendant should be confined to the charges alleged in the declaration.
The defendant had a right to a trial, according to law, of the issues joined. The question of its liability for damages should not have been left to depend upon the general conclusion of a jury, that it had not exercised the highest possible degree of care in his transportation, unrestrained by the pleadings.
3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to show the 'wrongfulness of their (defendants') conduct' at the time of the accident. Gahagan, Adm'r, v. Boston & Lowell R. R. Co., 1 Allen, 189.
4. The evidence did not show any negligence of the defendant in the particulars mentioned in the complaint.
On the contrary, plaintiff's evidence showed that the accident resulted from his own negligence. The defendant was therefore entitled to a verdict. Todd v. Old Colony & Fall River R. R. Co., 3 Allen, 21; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 231; Bridges v. North London Railway Co., 6 Law Rep. Q. B. 384; Smer v. G. W. Railway Co., 4 Law Rep. Ex. 117; Adams v. L. & Y. Railway Co., 4 Law Rep. C. P. 742; Penn. R. R. Co. v. Aspell, 23 Penn. St. 149.
5. Although plaintiff's evidence showed that the accident resulted from plaintiff's negligence, the court charged that 'the burden of proving contributory negligence rests on defendant; and it will not avail the defendant, unless it has been established by a preponderance of the evidence.' This was error. Chicago, B. & Q. R. R. Co. v. Hazzard, supra; Butterfield v. Forester, 11 East, 60; Button v. Hudson River R. R. Co., 18 N. Y. 253; Mayo v. Boston & Maine R. R. Co., 104 Mass. 140; Johnson v. Hudson River R. R., 20 N. Y. 60.
6. It was error for the court to refuse the motion of defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict. Osborn v. United States Bank, 8 Wheat. 366; Butler v. Young, Chicago Legal News, vol. v. p. 146; Republican Ins. Co. v. Williams, id. p. 97; Sage v. Brown, 24 Ind. 469; Barnes v. Williams, 11 Wheat. 415; Prentice v. Zane's Adm'r, 8 How. 487; Livingston Mar. Ins. Co., 6 Cranch, 280; Peterson v. United States, 2 Wash. C. C. 36; Butler v. Hooper, 1 id. 499; Bellows v. Directors, &c. of Hallowell and Augusta Bank, 2 Mason, 31.
Mr. A. G. Porter for the defendant in error.
The passenger was entitled to the highest degree of care and diligence. Philadelphia & Reading R. R. Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 How. 469.
The burden of proving contributory negligence rested on the defendant. Railroad Company v. Gladman, 15 Wall. 401; Whart. on Neg., sect. 423.
The refusal of the court to submit the interrogatories of the defendant below to the jury was correct. Nudd et al. v. Burrows, Assignee, 91 U.S. 426.
MR. JUSTICE SWAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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