
    MOBILE & O. R. CO. v. WILSON.
    (Circuit Court of Appeals, Seventh Circuit.
    October 5, 1896.)
    No. 279.
    1. PERSONAL IOTURIKS — -INSTRUCTIONS.
    The charge should state that, in respect to the law of the case, instructions of the court are controlling, and that upon matters of fact the credibility of witnesses, the weight of evidencie, and the like, the jury, though it may he advised by (he court, must finally exercise an independent judgment.
    2. CONTRIBUTORY NEGLIGENCE— BURDEN OF PROOF.
    In the federal courts the burden is upon defendant to show contributory negligence, and plaintiff, besides proving the negligence charged, must show that he was injured thereby, and to what extent.
    3. Same — Instructions.
    The jury were told that if, by reasonable care and prudence, defendant company could have avoided the consequence of plaintiff’s negligence, but failed to do so, plaintiff might recover, though guilty of contributory negligence. The next clause of the charge stated that the question of negligence in this respect, as in others, was to be determined “in view of all tlie facts and circumstances in the ease.” Held, that this latter clause in effect eliminated the question of contributory negligence, and was cause for reversal.
    In Error to tbe Circuit Court of the United States for the Southern District of Illinois.
    Action by Samuel Wilson against the Mobile & Ohio Railroad Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed.
    In this case the circuit court refused all special requests for instructions, and charged the jury as follows: “The declaration in this case contains three counts, each differing somewhat, from the other, but they substantially charge the defendant railroad company with so negligently and carelessly operating its train, consisting of a locomotive and car. as that the plaintiff, who ivas in his wagon, driving across Vine street, in tito city of Sparta, and at the lime exercising due care and caution, was struck by such engine, and seriously and permanently injured. A number of acts of imputed negligence on the part of the defendant are specifically mentioned; among them, that the train was running at a dangerous rate of speed, that no whistle was sounded or bell rung, or care or prudence shown in operating said train, at the time and place of the accident. Under the pleadings in this case the burden rests on the plaintiff to establish the negligence of the defendant, complained of in his declaration, by tbe preponderance of tbe evidence. There are two questions of fact in tbis case to be determined by you from the weight of tbe evidence:. First. Was tbe defendant guilty of negligence in approaching tbe Vine street crossing, either in running at a dangerous rate of speed or in failing to give such signals as tbe law required it to give? What is a safe rate of speed, or what is a reasonable and timely warning/, depends on or may depend on tbe circumstances. Of course, tbe speed of a train should not be so great as to render unavailing tbe warning of its whistle and bell; and while, it may be true, tbe fact that tbe speed of a train is greater than tbe maximum rate fixed by an ordinance is a circumstance from which negligence .may be inferred, yet that is but a circumstance to be considered by tbe jury in connection with tbe other evidence and circumstances in tbe case. If tbe evidence in tbis case shows that tbe crossing was hazardous, greater care was alike required by both tbe defendant company and tbe plaintiff in approaching it. All reasonable precautions should have been taken by tbe railroad company to avoid injury to persons and property, and this includes such management of its trains and such warning of their approach, or such other reasonable precautions, as not to cause unnecessary risks to persons on or about tbe crossing. The ordinary or proper care required by tbe plaintiff when approaching a crossing was to listen and look, and to have acted with reference to his own safety, as a reasonably prudent man would have acted under the same circumstances. Whether the plaintiff, at the time of the injury, was, under all the circumstances of the case, in the exercise of such care as would be expected of a reasonably prudent and careful person under similar circumstances, is a question of fact submitted to the determination of the jury. If you believe from the weight of the evidence that the plaintiff was guilty of contributory negligence he cannot recover, unless you further believe, from the evidence, that the defendant railroad company might, by the exercise of reasonable care and prudence, have' avoided the consequences of the plaintiff’s negligence. If it could have done this, but failed to do so, the plaintiff may recover, although guilty of contributory negligence. These questions of due care on the part of the plaintiff'and of alleged negligence on the part of the defendant are questions of fact to be determined respectively by you in view of all the facts and circumstances in evidence. If the weight of the evidence shows the defendant was guilty of the imputed negligence resulting in injury to the plaintiff when exercising ordinary care, then you should find the defendant guilty, and assess plaintiff’s damages at whatever sum, in your opinion, the evidence, properly considered, may warrant. If it does not so show, you should find the defendant not guilty. The form of your verdict may be: ‘We, the jury, find , the defendant guilty, and assess the plaintiff’s damages at’ -whatever you may agree upon under the evidence. If you find for the defendant, your verdict will be: ‘We, the jury, find the defendant not guilty.’ ”
    J. M. Lansden, for plaintiff in error.
    J. M. Hamill, for defendant in error.
    Before WOODS, JENKINS, and SHOW ALTER, Circuit Judges.
   WOODS, Circuit Judge

(after stating tbe facts as above). As we bad occasion to say ip Railroad Co. v. Kelly, 11 C. C. A. 260, 265, 63 Fed. 412: “Jurors are not trained lawyers, and, notwithstanding a general charge covering tbe issues of a case, it is tbe duty of tbe court, on proper request, to give tbe jury a statement of any distinct doctrine or proposition which is fairly and justly applicable to tbe issues or to an important phase of tbe case.” A charge to a jury ought to be more than a skeletonized statement of tbe issues and of abstract propositions of law. Tbe purpose is that tbe jury shall render an intelligent and discriminating verdict, and to that end ordinarily there must be, though at tbe expense of some repetition, a distinct and clear presentation, in tbe light of the evidence, of I he different issues, and of their bearing upon each, other and upon the general result. A full review of the evidence often may not be necessary, but some explanation of its relevancy and force, when the questions are intricate or close, should be given. This charge, though comprehensive and concise, on delivery doubtless was clear enough to the lawyers familiar with the case, and on the printed page it is perhaps within the comprehension of readers of average intelligence; but that the jurors, receiving it iu the usual manner, would each properly understand if in all its phases and applications, is not probable, and therefore the special instructions asked should not have been refused solely because comprehended or implied in tin* imager expressions employed. This charge, it is also to be observed, is lacking in important particulars. Tt omits to state that in respect to the law of the case the instructions of the court are controlling, and that upon matters of fact, the credibility of witnesses, the weight of evidence, and the like, the jury, (hough if may be advised by the court, must Anally exorcist' un indejiendent judgment. The burden of proof is only partially stated. In the federal courts it rests upon the defendant to show contributory negligence, and tiie plaintiff, besides proving the negligence charged, must show (hat he was injured thereby, and to what extent.

Exception was saved and error assigned upon the proposition in (lie charge to the effect that if. by reasonable care and prudence, the defendant company could have awiided the consequences of the plaintiff's negligence, but failed to do so, the plaintiff might recover, though guilty of contributory negligence. If understood to mean that if the servants of the defendant company, after perceiving the plaintiff’s danger, by reasonable exertions could have avoided the1 consequences, the company was liable notwithstanding the plaintiff's negligence, the proposition was unobjectionable. Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, and cases there cited; but in the next sentence, upon which also error is assigned, the court said, in substance, that the question of negligence in this respect, as in others, was to he determined “in view of all the facts and circumstances in the case.” That was, in effect, to eliminate from the case the question of contributory negligence. Tt permitted tiie jury to conclude that', if the defendant's train had been run with reasonable care and prudence,- — that is to say, at a proper speed, with bell ringing and whistle blowing, — the plaintiff would have escaped the consequences of his negligence, and on that ground was entitled to recover, notwithstanding his own negligence. For this error' the judgment must be reversed.

Tt was not error to refuse to direct a verdict for tiie defendant on the ground of contributory fault. The circumstances were such as to make that a question for the determination of the jury. The judgment is reversed, with directions to grant a new trial,  