The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-11-26
Northern Pacific Loses in the
Mintie Carver Case.
1-dge Hanford's Decision on the Motion
Of the Defendant-History
OF the Case.

the case, ana the defendant moved Tor
new trial. Before the motion could be
heard, the plaintiff died. The case is
fully explained in Judge Hanford's de-
cision, which is as follows:
United States circuit court. district OF Wash.
fngton, Northern division.
u. II. A. Hastings, administrator OF the estate
OF Mintie Carver. deceased, VS.. Northern Pa
cife Railroad company.
AT law. Action by Mintie Carver for damages
on the ground OF personal injuries caused by
suffering from cold while travelling Ia "a ear OF
defendants road. VERDI ct aud judgment in the
sum of $1,000 for plaintiff. Defendant moved
in due time for new trial, alleging as grounds
therefor: Error in law occurring upon the
trial; insuffeiency of the evidence to justify
the verdict; the verdict is contrary to the in
MT called for hearing at the time fixed by the
rules of the court nor until after the death of
the plaintiff. Her administrator. having been
sub tituted as party plaintiff. objected to the
hearing of said motion; objection overruled;
motto. denied.
E. r. Dole and Frank s. Southland for plaintiff
Andrew r. Burleigh for defendant.
HaSFoRp, District Judge
The plaintiff makes objection to the hear
ing OF motion for new trial, which was fled
within the time fixed by written stipulation of
the parties. Said objection il predicated upon
that part of rule "a OF this court which pre-
scribes that motion Tor a new trial shall be
brought on for argument OF the first succeeding
motion day OF the term ut which il can be
heard" This rule does no more than set a time
for the hearing OF a motion. II either party had
appeared on the first motion day at which the
Judge who presided at the tria. was present and
invoked tho rulo the court would have been in
duty bound to lave granted 4 hearing unless
prevented from doing SO by press of other bust.
ness. But both parties failed to so appear, and
the court has not been called upon to hear the
motion until the present time. The rule is not
tyits terms SO rigid as to deprive the court of
npoWer 10 pass upon motion for a new trial
nnbe not brought on for hearing at the time
Feciaiiy designated for the purpose, and hold
tflt must be construed in connection with
As55th rule, which reads as follows: "The
court. or judge thereof. may, in the interest of
!rstice and upon such terms as may be- just,
allow any act to be done after the time pre-
rribed by these rules, or may enlarge the time
slowed therefor" / therefore overruIe said
objection
Upon the trial OF the case after the introduce
ton OF the evidence, counsel for the plaintiff as
part OF his argument addressed to the court
upon the law of the case. cited as an authority
the opinion OF the supreme court of Washington
territory in the admiralty cause of Phelps vs.
the City OF Panama, Wash. Ty., SIS and read
portion of il. Counsel for the defendant OBJ.
5eeted 70 the reading OF said decision in the
hearing Of the jury, and asserted that the pur-
II was TO produce an effect upon the minds of
the jurors rather than to enlighten the court;
the objection was overruled, and an exception
was taken and allowed. The ruling OF the
court upon said objection constitutes the
alleged error assigned as one of the grounds for
the present motion.
do no. commend tho reading of decisions
upon the trial of a negligence case. But in this
instance the court merely permitted the at
torney in his argument to pursue the usual
course. Ali that was read and said was peril
nent To the questions at issue. And il would
have been tyrannical for the court to have As
sumed to control counsel in the use Of either
original or borrowed expressions or phrases; or
in the selection of authorities to establish the
propositions of law which he relied upon I
find no reason for admitting that an error was
committed in the failure of the court to mold
the style of the arguments.
The deceased, with several of her relatives, in
the month of February, 1891, emigrated from
Arkansas viz St Paul to this state. The party
paid second-class fare and travelled over the de.
PENDANTS road in a car TO VT ich they were as.
signed at tho ST Paul depot by person who
assumed authority to direct them. The weather
was extremely cold while they were passing
through North Dakota and Montana The de-
ceased suffered from cold and became i'll. Her
case deve,oped into pneumonia. from the ef-
ieets OF which she never recovered. These facts
are not disputed. There is a conflict in the evi-
dence as 10 whether not the defendant was
guilty of negi gence in failing to provide the
car With suitable means for making II comforta.
be and to avoid exposure of the passengers
Meein 10 discomfort from cold: as to whether
act the trainmen neglected TO keep up the
hfe In the car, and TO whether or
moi the deceased was guilty of
@uiribu.ory negl gence in failing to provide
lerseli nth proper clothing for such journey
~ a4ss a.,
deceased or any Of her travelling companions on
account OF GOODNESS in the car. until after she
had become i'll. and no effort was made to Sc
cure medical aid for her until after her arrival
10 Seattle. From the evidence il may be fairly
inferred that none OF the party were exper-
fenced Travellers that whatever they lacked in
the way OF suitable equipments for the journey
ana their failure To make timely complaint 10
Tue conductor ia attributable to their inexper-
Hence and timiiity
10 prove that the negligence complained of
was The approximate and active cause of pneu-
honla in this case that the deceased would
Ao' nave fallen victim to it notwithstanding
zoe most ample provisions for her comfort which
we defendant could have made, lie in my opn-
.oa an lmpossi6iilty. Nevertheless the case as
was submitted by the parties, involved ques-
IONS OF fact as 20 whether or not the defendant
was Negligent as charged in the complaint;
whether or not the deceased sustained any per
f0hsi Injury IN consequence Of such neg gence
AUG whether or not there was contrib utary neg
hgenee on her part These several questions
were ny the instructions which the court gave
N'.y submitted to the jury aud were by the
,efalet decided adversely 10 the defendant
.poa review OF tie case do not fiud the YER
VIZ u &c unsupported by sufficient legal evil
.shee' or contrary 90 the Instructions given by
tie court:
~ The argument upon this motion the main
te'Shee az The Defendant seems 70 be upon the
t'Nos11ua that the failure o. the deceased 10
rTHp'iy notify the conductor OF the discomfort
when she suffered Wa, neg gcnce on her mart
saI'eieHs IN law 10 preclude her from recover
lng damages for any injury resu ting from such
1iseou'ort II IS my opinion, however. that, in
.1eW OF the circumstances which the evidence
~aatd 20 rrove, II was fer me Jury 10 decide
~NS'heF The IS! are Of the deceased 20 cornnIain
vas OF was not negligence on her usrt The
SdesGon WAS sQbUl. TIED - tie {urr in tba
'0afEe given and afterwards nor, specifically
- response 10 lhe following inquiry ma1e hv
.-V jury: "Are Nc, the jury. 10 understand -
.ae nstruet!ous 81 the court iaat The failura -.
e flsint,f 20 cal the attention OF the -osd
apeyes 10 sac cold condition % ne car n.f,,a
as sIe& a. being coutritutury nesIi-..,f.
ea'eat 81 pfec.udInS her from recovering
aa"Ses In thss Ca>ef' The response eXn-s.sa.
~ opinion which now entertain. and Wa, in
1'Ss Is follows: - meau - tel yuu this zen
1eo, that II in ADy instance Il was ues.i.
80 ief the plaintiff n keep sIlll AMI make m
s'A!ai y hen sae hSi an opportunity 10 ioske
A. F@9t, II she d. have a. oEpar. unity - il,
eoa1a = coCtr.tutory negligence. which
- preclude her rom recovering dar,hgas
,,. a - 'cE sou 70 sSy under ali the cirrl,r,-
OF the case, whether situated as she
asv t, - 'ae opportunities which sae had. :.