Western & Atlantic Railroad v. Bussey , 95 Ga. 584 ( 1894 )

Atkinson, Justice.

Mrs. Bussey sued the defendant company for damages because of the homicide of her husband, alleged, in substance, to have been caused by the negligence of the agents of the defendant in turning one of its switches to a side-track upon which one of the trains of the company was standing, and in so leaving the switch as that when the train upon which her husband was the engineer was due arrived at that place, his engine took the side-track and collided with the train thereon ; and because the defendant was further negligent in that, it being dark at the time of the collision, its servants gave no warning, by switch lights or otherwise, of the condition of the switch. The declaration further alleged that the engineer who was injured was free from fault. The ■original plaintiff' having died pending the action, the present plaintiff's, who were the children of herself and her deceased husband, were made parties plaintiff by ■their next friend. Upon the trial of the case, many •questions of fact and law arose which involved the interpretation and application of certain rules adopted by the l’ailroad company for the government of its employees. The rules introduced were as follows, to wit:

“ Rule 17. All trains must stop at schedule meeting or passing points, unless the switches are plainly seen to be right and the track clear. The point at which a train should stop is the switch to be used by the train to be met or passed in, going in on the siding.

“ Rule 28. Passenger-trains will not exceed thirty-five, nor freight-trains twenty miles per hour.

“ Rule 35. All trains will run with great care after rains, and'slacken their speed when the track is in bad order, while passing switches and when crossing long bridges and trestle-work, and, when practicable, shut off steam.

“ Rule 41. Conductors have entire charge and control of their trains and all persons employed on them, and will be held responsible for the movements of their trains while on the road, except when their directions conflict with the rules, or involve risks or hazards, in either of which cases the engineer will be held alike accountable. Copies of special orders concerning the movement of a train will be furnished to both engineer and conductor, and where such orders are telegraphed, both engineer and conductor must reply by a signal message to the officer by whom the order was issued,- stating how they understand the order, and must not leave the station at which it was received until notified by the proper officer that the order is correctly understood.

“Rule 46. Conductors and enginemen will consult the bulletin board daily and note all new orders.

“Rule 90. The use of spirituous liquors, profane swearing, obscene language, bolstering, swaggering or other conduct unbecoming a gentleman will not be tolerated in the employees of this road, either on trains, at stations, eating-houses or elsewhere. Rudeness or incivility to passengers or other patrons of the road will in all cases meet with immediate punishment.

“Rule 95. Conductors and enginemen will be held equally responsible for the violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of their trains, even if not provided for by the rules.

“Rule 96. Run no risk; take the safe side in case of doubt.

- “ Special Instructions. — Rule 4. The use of intoxieating liquors is forbidden to the officers and men engaged in the service of the W. & A. R. R. Any one who becomes intoxicated will be dismissed.

“Rule 5. Run no risk; take the safe side in case of doubt.”

There was a verdict for the plaintiffs for six thousand dollars, and defendant’s motion for a new trial having been denied, it excepted. The motion was upon the general grounds, upon the ground that the verdict was excessive, and upon the special grounds with which we now proceed to deal.

1. It appears that upon the trial of the case, plaintiffs’ counsel offered to read in evidence the depositions of one Earwood, a witness for the plaintiffs, the depositions of this witness having been taken before a commissioner under section 8898 et seq. of the code. At the time the plaintiffs offered to read the depositions in evidence, it appeared that the witness was himself present in court; and thereupon the defendant objected to the depositions being read, and insisted that the witness should be put on the stand and examined orally. The court overruled the objection and alloived them to be read. It is urged upon us with great earnestness by counsel for the plaintiff' in error, that these depositions should have been excluded, and that the analogy of decisions rendered in this court in which the answers to interrogatories taken were excluded when the witness was himself present at the trial should be applied to the class of depositions now under consideration. The ground upon which answers to interrogatories, under such circumstances, are excluded, is that such answers are in their nature but secondary evidence. They are allowed under certain circumstances ex necessitate rei, and not because testimony of that character is favored of the law. The allowance of that class of testimony is justified under the statute, upon the supposition that the witness is either personally unable to attend upon the trial because of physical infirmity, or because the necessity of his personal attendance would withdraw him temporarily from the performance of some public duty, and upon other like grounds mentioned in the statute; and therefore, his presence was dispensed with and the answers to interrogatories allowed in lieu of an oral examination. The taking of depositions, however, under section 3893 et seq. of the code, does not proceed upou that idea. It is not an ex parte proceeding. It is primarily for the convenience of witnesses themselves, and to relieve them of the necessity'of attending upon trials upon original writs of subpoena, which, in the absence of such provisions, would issue as a matter of course, upon the application of either party, to any resident witness. In the large commercial centers, the courts are almost constantly in session, and to require the personal attendance of witnesses during the trials to which they have been subpoenaed, would involve them in g’reat pecuniary loss and involve a sacrifice of their personal interests without any corresponding personal advantage. It is, therefore, that in counties containing as many as twenty thousand inhabitants, the legislature has wisely provided that at the election of either party .any witness might be examined by a commissioner appointed by the presiding judge. • "When this commissioner sits, he is clothed with a species of judicial character. The witness may be orally examined by the party calling him and cross-examined by the adversary, and the entire result of "the examination is required to be reported to the court; the court at last judging of the competency of the witness and the legality of his testimony. So that in civil cases, the very difficulty •suggested by counsel in argument, that a defendant is not himself confronted with witnesses that testify .against him, is obviated. There is no constitutional requirement of that character in that class of cases. It is a subject with which the legislature, in its discretion, has full power to deal; and indeed it might, if it saw proper, expressly deny a writ of subpoena to any witness who had been thus examined. To say then that the casual presence of such a witness in the court-house at the time the case happened to be tried would have the effect to render nugatory the previous proceeding to take his testimony, would be to deny to him the very privilege the legislature designed to confer upon him. The proceeding to take testimony in this class of cases, under the conditions provided by this act, bears a striking resemblance to the methods of procedure where a case is referred to a master in chancery or an auditor at law. In the latter two cases, the evidence together with the findings of the master and auditor are required to be reported, and in the proceeding now under consideration only the evidence of the witness is required to be reported; its weight to be determined by the court after it is received. It would not be contended for a moment, that the presence of a witness at the time a master’s report or auditor’s report is submitted to the court would deprive the evidence of such witness embraced in the report of its quality as legal testimony; and we see no greater reason in case of depositions than in the other cases just referred to, why the testimony should be excluded because the witness happened to be present. He was not required to be present; and while we do not mean to say that circumstances may not arise under which the trial judge, in the exercise of a sound discretion, might require a witness to appear and testify in person, even though his depositions had been taken, we know of no rule resting upon positive statute, or which could be evolved from the legislative scheme expressed in the provisions of the code now under consideration, which would constrain an exclusion of such depositious upon the mere suggestion that the witness was present. Two methods of examination were open to this plaintiff in the first instance: one by depositions taken before a commissioner, the other by oral examination in the presence of the court. He elected to adopt the former, and cannot be deprived of the benefit of his election by the voluntary appearance of the witness. Upon proper cause shown, the court, in the exercise of its discretion, upon the application of the plaintiff’, might relieve him from the effect of his election; but if he is willing to abide by it, the defendant cannot be heard to say that the testimony thus taken is illegal. If there are other facts within the knowledge of the witness, material to his defense, the defendant is at liberty to examine the witness orally upon his own motion. We do not think, therefore, that the court committed an error of law in refusing to suppress the depositions, or in admitting them to be read before the jury.

2. Many of the questions made in this case turn upon the interpretation of rules made by the railroad company for the government of its employees, and for their direction in the discharge'of their duties. And this circumstance induces us to indulge in some general observations upon the legislative power o'f corporations with respect to their employees, and the obligation which they assume toward the employee when they enter upon the exercise of that power. The general law of master and servant enjoins upon the servant the duty of a faithful allegiance to the interests of his employer, and the duty to exercise in all cases at least ordinary care in the discharge of his duties; but the statutes of this State extend this principle to the point of enjoining upon an employee of a railroad company, who sues for injuries resulting from the negligence of a coemployee, the duty of so controlling his own movements as to be himself absolutely free from fault. When the corporation itself enters upon the task of framing rules which shall stand as law unto its employees, the lawmaking power should be reasonable in framing such rules, and should express them in such language and so directly as to be entirely unequivocal. If by the formulation of rules it undertakes to meet the varying exigencies which may ai’ise in the conduct of its business, substituting direction to him, fora discretion which otherwise the employee would be required to exercise and for the exercise of which he would be answerable, their statutes must be at least unequivocal and within the comprehension of the class of persons upon whom they are •designed to operate. Nothing should be left to intendment. It should be borne in mind that the persons ■ordinarily employed in the conduct of this business, and for the government of whom these rules are designed, are not learned or skilled in the technical rules of statutory interpretation ; and therefore if they be not couched in such terms as to make them intelligible to employees, •or if they be so far equivocal as to express one thing and mean another, it would be a harsh rule of law which would hold the employee answerable where he conformed to the express direction of the master, but in doing so violated what the latter may be pleased to term the spirit of a rule. Such rules are to be strictly construed .against the company, and will not be held to enjoin upon an employee a particular duty with respect to a particular subject, unless such duty be comprehended within the clear and obvious meaning of the rule itself. That ■forfeitures are abhorred in equity and are never favored in law, is an old maxim of universal acceptance in the ■courts of this State. Therefore such rules ought not to be held to forfeit the right of an employee to recover, where otherwise under the law he would be entitled to recover, unless there has been a plain and manifestly negligent violation of the rule according to its plain and ■obvious meaning; nor unless such violation of the rule las been itself a contributing cause to the injury.

3. Complaint is made that the court erred in refusing to charge the jury, at the request of the defendant’s •counsel, as follows: “If you believe from the evidence that Mr. Bussey, the engineer in charge of the train, violated a rule of the defendant which was in force and -effect at the time of the accident, of which Mr. Bussey had knowledge, which provided that while passing ■switches the speed of the train should be slackened, and this collision was occasioned in whole, or at least in large part, from his not observing this rule, and that from such collision Bussey received injuries from which he subsequently died, the .plaintiffs cannot recover, .although the defendant may have been negligent in not having the switches properly set.” This request, it will be observed, was directed to the performance of a particular duty imposed by a special rule of the railroad •company; and the request assumes the duty to have been to slacken the speed of the train while passing switches. This request was properly refused, we think, for the reason that there was no evidence in the record ■to.justify the instruction therein contained. The only rule of the company in which we find the expression “slacken the speed” employed at all is rule 35, which was introduced in evidence, and which provides that “All trains will run with great care after rains, and slacken their speed when the track is in bad order, while passing switches and when crossing long bridges and trestle-work, and, when practicable, shut off steam.” There was no evidence submitted, so far as we have been able to gather from the record., that there had been recent rains or that the track of the railroad company was in bad order; indeed, the contrary of the latter condition seems to be established by the evidence in the case. Inasmuch, therefore, as by this rule the engineer was only required to slacken speed while passing switches when the track was in bad order, there was no evidence which would authorize the giving of a request based upon such a predicate. Besides, according to another rule of the company, even at switch points, engineers were authorized to run their passenger-trains at a rate not to exceed thirty-five miles and freight-trains at a rate not to exceed twenty miles per hour. It is contended, however,, that this general rule was qualified by what is termed a special bulletin relating to the same subject, and providing that during the time the railroad authorities were occupied in putting in a certain class of switches, the speed of freight-trains passing switches was limited to-ten miles and passenger-trains to twenty miles per hour. This special bulletin was not itself introduced in evidence. It appeared that it had been lost or destroyed. No copy was preserved, and it was necessary to rely upon parol evidence as to what were its contents. It is difficult to' arrive at its exact terms; and according to the testimony of the superintendent, who, among other things in testifying in regard to the bulletin, said: “I do not suppose there was any special bulletin about that-switch at the time Mr. Bussey was hurt, because they had left that switch and were working beyond,” it was-exceedingly doubtful, even if the terms of such bulletin were accurately remembered by the witness, whether at the time of the injury it was of force. As enjoining then a special duty outside of the general rule, this bulletin was insufficient of itself to require a slackening of the speed. According to the testimony of the superintendent, it was only provided by this bulletin that passenger-trains should not pass over its switches at a greater rate than twenty miles. Up to that rate the engineer was within the bulletin; and inasmuch as it did not enjoin upon him a specific duty to slacken the speed, the request was inapplicable. So that, under these rules, including the bulletin, if the engineer were running within this rate, and the jury so found, the instruction asked would have been misleading, because, even though the condition of the track was such as to authorize him to run upon the prescribed rate, and he were running at a less rate even than this, unless he in fact slackened his speed, he would be guilty of negligence. In other words, though the rules of the road allowed him to run at thirty-five miles or twenty miles per hour, if he was in fact running at only three miles per hour, and yet did not at 'this point slacken his speed, under the instruction asked, he could not recover. The evidence was conflicting as to the speed at which the train was running; but this request, as it did, leaving out of consideration entirely the rate at which the train was actually being run at the time the collision occurred, enjoined upon the engineer the- duty to slacken, when no such duty might have been dictated by the rules of common prudence and was not enjoined by the rules of the company.

4. Complaint is also made of the refusal of the court to give in charge a written request which was in the following language: “ If you believe from the evidence that the defendant had a rule of force at the time of the accident, of which Mr. Bussey had knowledge, that required all trains to stop at schedule meeting or passing points, unless the switches are plainly seen to be right and the track clear, I charge you that if the engineer, Mr. Bussey, knew of a train being on the side-track before getting to the switch and that he had to pass this train, although Kingston may not have been on the time-card as a schedule meeting or passing point, yet he would be bound by this rule when he discovered that he was to pass a train at thakpoiut.” This request involves the trial of the issue raised by it, according to law made by the defendant company for the government of the engineer; and in determining whether it was a proper request, we must look to the rule established by the railroad company, to ascertain whether the particular acts stated in the request were enjoined upon the engineer by this rule. The rule upon which it was predicated is as follows: “All trains must stop at schedule meeting pr passing points, unless the switches are plainly seen to be right. The point at which a train should stop is the switch to be used by the train to be met or passed in going in on the siding.” The record in this case shows that the passenger-train of which the deceased husband was the engineer was bound southward. The freight-train with which he came in collision was bound northward. At the place where the collision occurred, there is a side-track with two openings, one at the north end, the other at the south. The freight-train in going north would enter the side-track at the switch situated at the south end of the side-track. This then was the point of danger. This then was the point at which the train going south was required by the rule to stop. The collision occurred in consequence of the northern switch being left open, and at a point near the north end of the side-track. So it will be observed that the point of danger at which, by the rules of the company, the engineer was required to stop his train was at one point, and the point of actual danger, as developed by the facts of this case, was at another point. According to the testimony, the collision occurred before the engineer ever reached the point where the rule of the company enjoined upon him the special duty to stop his train. Aside from this, there was no evidence that the point at which the collision actually occurred was a schedule meeting or passing point within the meaning of that rule. So that the court committed no error in refusing this request. Nor was there any error in the charge by the court, that the engineer under such a rule could pass other than schedule meeting or passing-points at such rate of speed as common prudence dictated as safe.

5. Exception is taken to the following charge of the court: “ If you believe from the evidence that a brakeman of the defendant was under a duty to set the north switch, as it is called in the evidence, so as to make the main track secure for the passage of the engine that Mr. Bussey was driving, and he failed to use ordinary care in discharging this duty, and so did not set the switch and lock it to the main track, but set it and locked it to the side-track so as to cause the engine to leave the rail at that point, you ought to find that the company was negligent in that regard.” It is insisted that this charge of the court is erroneous, in that it stated to the jury as a conclusion of law that certain facts, if proven, would constitute negligence; and that negligence is a question of fact which the jury are to judge from the evidence, and not a question of law, and it is not the province of the com-t to tell the jury that any given state of facts amounts to negligence. ~We think the rule of law as stated in the exception to this charge is a perfectly sound one, and the exceptibn might be sustained, but for the fact that it has no application to the particular charge complained of. It will be observed that the court did not say that if the jury found from the evidence that the defendant’s employee omitted to perform certain duties, such omission would amount to negligence upon his part; but the charge of the court is, that if the jury found that if a certain duty was enjoined upon this special employee and in the performance of that duty he failed to use ordinary care, and in consequence of his failure to use such ordinary care he so set the switch as to produce the injury, they ought to find the company was negligent in that regard. The failure to exercise ordinary care in discharging the duty was negligence, and the charge of the court clearly submitted to the jury the questions, first, whether such a duty was imposed, and secondly, whether or not in the performance of the particular duty the employee exercised ordinary care. If they found that such a duty were imposed and that the employee did exercise ordinary care in its performance, then the company would not be negligent; if he did not, it was negligent.

6. It was in issue as to whether a certain bulletin order was issued regulating the speed of trains at switches, and whether, if such an order existed, it was a general order applicable to all switches. The charge of the court was, upon this subject: “ If there was a bulletin order as to speed at switches, or bulletin orders on that subject, but this was not a general order applicable to all switches, but a special bulletin relating to particular switches undergoing repairs and mentioned in the face of the order, it would not apply to the switch in question, in the absence of evidence showing that this switch was specified.” We think this was a correct interpretation of the order and a proper instruction to have been given to the jury. Certainly a special bulletin purporting to regulate the speed of trains when passing particular switches could have no application to switches generally; and even if such a bulletin existed, in the absence of evidence showing that the point at which the disaster occurred was comprehended within the class of switch points embraced by the terms of the order, it could have no application, and the court properly so directed the jury.

7. There was much conflict of testimony as to the rate of speed at which the train was running at the time the collision occurred; and in arriving at the probable speed at which it was running, evidence was introduced as to the l’ate of speed it had run at other points before reaching the point at which the collision occurred. The real question at issue, however, was as to the actual ■speed at which the train was running at the time of the ■collision. This was largely and necessarily to a great ■extent a matter of conjecture. None of the witnesses, ■even those who were most expert, could do more than •express an opinion as to the rate of speed. This was •one of the closely contested questions in the case. Upon that the trial judge charged the jury that:' “If Mr. Bussey was not running faster than twenty miles per hour when he passed the switch, you ought to find that he did not violate the bulletin order mentioned, even though he ran faster than that at a point further hack •on the track.” We think this was a proper instruction ; that it was justified by the evidence, and was a proper precaution to the jury that, though the engineer were negligent in running his train at too high a rate of •speed at other points, if at the time of the collision he was not exceeding the limit allowed by the bulletin ■order, assuming even that its existence and applicability to this particular switch.. point were properly proven, then he would not be negligent.

8. Exception was further taken to the charge of the •court upon the subject of the use by an employee of intoxicating liquors. The portion of the charge excepted to is as follows: “If he violated a rule as to drinking ■spirituous liquors while on duty, such as that mentioned in rule 90, if the plaintiffs have shown to your satisfaction by clear and convincing evidence that his disobedience did not contribute directly or indirectly to occasioning the collision, you could not find Mr. Bussey guilty of contributory negligence as to that matter, in the legal sense. But if the evidence does not so satisfy you, the presumption would be, if Mr. Bussey drank •spirituous liquors on his engine, that it did contribute; and you ought, under these circumstances, to find in accordance with the presumption and that the plaintiffs cannot recover.” Two rules of the railroad company bearing upon this subject were introduced in evidence. One was rule 90 and the other was rule 4. The former-provided as follows : “ The use of spirituous liquors, profane swearing, obscene language, boistering, swaggei’ing or other conduct unbecoming a gentleman will not be tolerated in the employees of this road, either on trains, at stations, eating-houses or elsewhere. Rudeness or incivility to passengers or other patrons of the road will in all eases meet with immediate punishment.” Rule 4 provides: “The use of intoxicating liquors is forbidden to the officers and men engaged in the service of the W. & A. R. R. Any one who becomes intoxicated will be dismissed.” As rules inculcating correct moral principles and as tending to elevate the general tone of morality and civility among its employees, these were estimable provisions of police lawn The use of spirituous liquors by rule 90 was prohibited in the sense of a legislative declaration that it will not be tolerated in the employees of the road. In other words, for a breach of these rules, employees are advised that the company will police them, and if it be accompanied, with rudeness or incivility to passengers or other patrons of the road, it will in all cases meet with immediate punishment. Whaf the degree of that punishment shall be, however, is left largely to the discretion of the authorities of the road. There is no indication of a purpose to insist, in case of accident, that the mere use of intoxicating liquors shall amount to such negligence as would forfeit to an injured employee a right of recovery. Such could not have been the intention of the framers of these rules, for the reason that if such consequences were to be visited upon every employee who, in a social way and wholly disconnected with the conduct of the business, took a drink of any kind of spirituous liquors, then no employee who, at any time after he came into the employment of the railroad company, took a drink of such liquors could ever recover for the wrongful act of a coemployee. The use of obscene language and profane swearing are classed with the use of spirituous liquors, but we are unable to see, however reprehensible might be the use of such language, how it could have the slightest possible bearing upon the question of negligence or diligence of an employee in the handling of an engine; and yet, judged by this rule, if it may be strictly construed (and we are not at liberty to construe it otherwise), the same consequences would be visited upon the man who was guilty of swaggering as if he had been addicted to the use of spirituous liquors. "We think that rule 90, upon a close analysis, is designed rather to lay down a few elementary principles involving questions of ethics, than to prescribe rules for the regulation of the conduct of employees. Rule 4 deals more directly with the subject of the use of intoxicating liquors. It is declared there that “ the use of intoxicating liquors is forbidden to the officers and men engaged in the service of the W. & A. R. R.” The penalty attached to the use by the persons who framed the rule is contained in the concluding sentence, that “ any one who becomes intoxicated will be dismissed.” Now this rule is not confined- to persons drinking while they are engaged in the conduct of their business. Under that rule, the president or general superintendent of the railroad company could not take a glass of wine upon a social occasion without exposing himself to the risk of instant dismissal. Railroad companies have no power to regulate the personal conduct of employees,, save only in so far as the conduct of such employees may involve the proper discharge of their duties. It may be a good reason for the instant dismissal of an employee that he becomes intoxicated while on duty, or off duty. A railroad company has the right to say that-it will not employ, or retain in its employment, a man who is addicted to the use of intoxicating liquors. But when we come to deal with him upon the question of negligence in the performance of his duty, we deal with him upon higher ground than the artificial standard •established by such rules. In a contest between the rule of a railroad company and the law of the land, the latter is supreme. The law of the State provides that if an employee be himself without negligence and is injured by the negligence of a coemployee, he is entitled to recover; and the railroad company cannot defeat a recovery by showing that he was guilty of some conduct at some time in violation of some of its rules, which did not involve the question of negligence and did not contribute, remotely or proximately, to the injury for which he brings his suit. As a matter of fact these rules introduced in evidence ought to have had no bearing upon the question in the 'case. It is the duty of the engineer of a railroad train, independently of all police rules established by the company itself, while in the discharge of his duties to abstain from the use of intoxicating liquors. The lives of the traveling public are committed to his care, and the interests of the public at "large enjoin upon him the duty of being :at all times in the full possession of all his faculties; and if, under such circumstances, he should drink intoxicating liquors, and in consequence thereof a casualty occurred resulting in injury to himself, a jury might find, •even though there was no direct evidence showing primarily a fault upon his part, that in consequence of drinking the liquor he was likely to have grown less attentive to his duties, and therefore attribute to him ■some negligence which otherwise might not appear. But unless the use of such liquors did contribute in •some appreciable degree to the production of the injury sustained, his right of recovery would not be defeated. That it might have contributed to such result, if it did not in fact so contribute, would not defeat a recovery. If subject to criticism at all, the charge of the court upon this subject was much more favorable to the defendant than it was entitled to have. He charged the jury, with respect to these rules which we have been discussing, that if an employee violated a rule, the presumption would arise that such violation contributed to produce the collision. We think this is the only doubtful ruling in the whole case, and the doubt here is against the contention of the plaintiff in error. Why should the use of profane language by an engineer upon his train raise a presumption that it was a contributing cause, and attribute as a consequence the casualty to his negligence? Why should taking a single drink produce a similar result? And why should not this, as are all the other questions of fact made in the case, be decided according to the weight of the evidence, rather than with reference to supposed presumptions which arise? It is no presumption of law, and if it be one of fact, it should be, like other questions of fact involved in the case, decided by the jury. We do not desire to be understood as intimating that it is the purpose of this court by its rulings to relieve employees against the consequences of their own negligence; and particularly as to negligence resulting from intemperance. We recognize the danger to the public; we recognize the importance to the companies of the sobriety of their employees. ' But if the personal conduct of the employee did not amount to negligence contributing to the injury, this court cannot deny him the right to compensation.

9, 10. The questions of fact made in the record were submitted to the jury in one of the ablest, most comprehensive and most conservative charges it. has ever been our good fortune to find in a record. It may said to be a model of its kind; and we are fully persuaded that the verdict of the jury was carefully reviewed by this painstaking judge before the motion for a new trial was overruled. Notwithstanding this, however, we have been at great pains carefully to analyze the evidence contained in this voluminous record, and we find that upon all of the contentions between the respective parties the preponderance of the evidence is in harmony with the finding of the jury. That the father of these plaintiffs was killed in this collision, and that the collision was brought about without negligence upon his part and because of the negligence of other servants of the company, we do not think is open to serious question. The verdict is reasonable. If there were any errors committed by the trial judge in his instructions to the jury touching the application of the mortality and annuity tables which were in evidence, such errors are without doubt cured by the moderate finding of the jury. There having been then no error of law committed upon the trial, and the verdict being in harmony with the weight of the evidence, the discretion of the trial judge in refusing to grant a new trial will not be disturbed. Judgment affirmed. ■said at the time that I did not know how it got there. On January 1,1892, in making my tax returns I swore that the market value of my stock was $1,800. Mr. Sack used the student lamp on his bench for night work. 'The benzine and kerosene that were there were used for cleaning purposes, cleaning the movements of clocks .and watches. Benzine is used for cleaning watches. The amount of kerosene purchased was 10 cents worth. 'The benzine was kept near Mr. Sack’s bench; I had nothing whatever to do with it. It was kept in a glass bottle. The benzine had nothing whatever to do with the fire, as far as I could see. The kerosene can that was full or nearly full would hold about two or three ■quarts. That kerosene was used by Mr. Sack, and was kept near Mr. Sack’s bench on his side. He used it to put it in his lamp; maybe he used it for cleaning pur-' poses too. The fire did not start near that can of kerosene. The other kerosene can was one that Mr. Sack said leaked, and we did not use it much. If there was kerosene on the paper there, I presume that the lamp must have turned over and some kerosene reached the paper. The piano lamp was turned over. At the time I made my tax return I owed about $5,000. I did not think that I should pay taxes on my debts. My idea was to deduct the amount of purchase money, and the balance represented what was liable for taxes. I counted that $9,200 less $5,000 would make $1,800. I simply ■ owed the money but owned the stock. The lamp that was upset was on the same side the paper was lying on, the north side. The paper was not right at the lamp; the oil might have spread there. The paper ivas under the shelving, and the lamp was on the other side of the shelving. I do not know what quality of kerosene was in the demijohn. I just sent out and got 10 cents worth of kerosene; this oil was in the demijohn. I got it for cleaning purposes. The can which Mr. Sack used •for his lamp, maybe, was a gallon can.