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entirely eliminated; to require such an elimination of the dangers would be to forbid a railway company to use its engines near to or by a compress plant. Under the suggestions just made, it is clear that the compress company, in the nature of things, knew of and assumed some of the risks which inhered in the physical conditions of the situation. The compress company, bailee of the several owners of the cotton, should be charged with assuming all such risks as at any time might be present when or where a reasonably safe engine, being operated with the due care and consideration for the exposed cotton, was running over the tracks near by the compress platform.
The compress company was, at the time of the fire, not actually engaged in compressing cotton bales. Its machinery was idle. It's crew were engaged in handing cotton on the platform, presumably its employés had sufficient time to look after dangers to the cotton. There were a large number of bales of cotton stored, apparently for the moment, on the platform, which, in the nature of things, were more or less exposed to damage by fire sparks from a running engine. It may be that there was no negligence chargeable to the compress company in having such a number of bales of cotton stored, uncovered or unprotected, as they were, on its platform. It may be that the cotton bales were so kept or placed on its platform in the ordinary and necessary daily operations of its compressing business. A few minutes before the fire occurred, Miller, the manager of the compress company, was engaged in inspecting or tagging the cotton bales. At the time of the fire, the railway company was operating its engine over the yard track for the purpose of switching its cars from place to place over its tracks in the railway yard.
The compress company knew of the railway's daily use of its vard tracks, and of the conditions and dangers which necessarily attended the railway's daily operations. Both the litigant companies had full knowledge of the inflammable character and conditions of the several hundred bales of cotton that were often exposed, uncovered, and unprotected from fire on the compress platform. Such facts, being known to the engineer, should have made him (as he swears it did make him) careful in operating his engine on the track running near to or close by the compress company's platform, on which he says he knew there were often, more or less, exposed cotton bales. The engineer says he had in mind and knew. of such dangers, and he, under such circumstances, always carefully operated his engine; that he knows he was operating his engine carefully that day. The physical environments and conditions fully known, as they were, to either of the litigant companies (considering the compress and railway company as such parties), suggested the nature of the reciprocal duties with which the law charged either of the parties, inter sese, to this suit.
There was much conflicting evidence relating to the second and third proposition; that is, as to how or in what manner, whether carelessly or carefully, as to the immediate conditions, the engineer, when running his engine close to the compress platform, operated his engine. Several of the plaintiff's witnesses point out, in detail, how negligent and indifferent, as to the things in the locality, the en
gineer operated his engine at the time in question. Some of the plaintiff's witnesses said that on other occasions similar to the one in question, unusually large sparks were thrown from the smokestack of the engine. Other witnesses for plaintiff said, substantially, that the engineer, at or about the time of the fire, ran very fast over the track near to the platform, and the engine's violent exhaust caused large fire sparks to fly from the engine, and that such acts showed negligence and carelessness in the operation of the engine.
It is not necessary, for my purposes now, to recite in detail either plaintiff's or defendant's evidence on these issues of fact. Much, if not all, the evidence of a direct nature tending to show the engineer's negligence, was given by witnesses for plaintiff who were more or less at some distance from the engine or compress building, and not in any way engaged in the operations of the switching work. They were mostly casual lookers-on at the switching moveinents of the engine in the yard. The engineer, fireman, and conductor, and other witnesses who were engaged actively in operating the switch engine state that all the operations of the engineer and engine were characterized by reasonable care and consideration for the conditions and environments of the situation.
I am not disposed to agree with the strenuous contention of plaintiff's learned counsel that the defendant's witnesses-mostly railway employés—as to material incidents at the time of the fire, were not credible witnesses because they were prejudiced in favor of the defendant railway company. Of course, their relation to the railroad company may have given some favorable coloring to their statements in favor of the railway company. It was equally apparent during the trial that local surroundings and circumstances may have, in some degree favorably, for plaintiff's contentions, colored the views of some of the plaintiff's witnesses. One familiar with such trials cannot be unmindful of such influences on either side of an issue. like this. One learns from experience in such trials to scrutinize the weight of contradictory testimony. If the witnesses of either side were disposed to give false evidence, their opportunities respectively for indulging in perjury were possibly equal; but, conceding that the several witnesses, on either side, who gave testimony as to such material issues as relate to the carelessness and negligence displayed in the activities of the engineer and engine, were possessed of equally good motives and purposes to tell the truth as to such instances, it is clear that the employés of the railroad company who were at the time of the fire actively engaged in operating the engine, and engaged in the switching work over the railway's yard tracks, had much better opportunities for seeing, noting, and observing the movements of the engineer and engine than the several witnesses for plaintiff company, whose evidence was more or less of a circumstantial nature. The engineer, fireman, conductor, and other employés engaged in all the activities of the moment, in their testimony, spoke of incidents and things which were within their own knowledge. All the direct evidence, as to the construction and condition of the spark arrester, was given by the defendant's witnesses who saw and examined the spark arrester, and who, in the nature of things, would be or would
confronted with certain facts connected with his relation with the bank and the relations of others thereto, he confessed that he had taken the money, which he had used in speculation and also expressed contrition for his conduct in the premises. Although the defendant admitted the taking of the money, I permitted the government to produce witnesses on the stand to prove all the facts within its possession in relation to the acts of the defendant in taking this money. I permitted this proof on the part of the government for a twofold reason: First, in the absence of a general plea of guilty by the defendant, the government had a right to present its case in its own manner in keeping, of course, with the proper rules of evidence; second, this evidence was relevant and proper upon which to base a hypothetical question to be presented to the medical experts whom I knew were to be examined in this case, upon the question of insanity vel non. Again, the conduct of the defendant during the time he took the money, his statements made on his arrival from his vacation, his confession, and the manner of his confession, are all evidence to be taken into consideration by the jury in connection with the other evidence in the case in assisting them in determining the question of the defendant's sanity at the time of the commission of the offence.
When the experts were placed upon the stand, they were interrogated by hypothetical questions, detailing in substance certain facts in the case in relation to the mental condition of the defendant. This was competent testimony, and is the usual way of presenting evidence by experts, but the value of testimony based upon hypothetical questions depends upon whether the statements in the hypothetical questions are sustained by proof in the case. You must in this connection take and consider the testimony of these experts, in connection with the other testimony in the case, as bearing upon the question of the sanity or insanity of this defendant at the time he took the money. But the testimony of these experts is not all the evidence by any means upon the question of the defendant's sanity or insanity, but there is Other evidence presented to the jury on this question, which they must consider-evidence of witnesses as to facts in reference to the conduct of the defendant at the time of the taking of the money, prior thereto, and since the taking, which must be considered by the jury in connection with all the other testimony in the case.
I permitted witnesses who were not experts to state in a way their opinion in reference to the defendant's sanity, but the jury must not forget in the consideration of the opinion of these witnesses, whom I may call nonexperts, that they must not consider their opinions alone, and place them in opposition to the opinions of the medical experts who have been placed on the stand, and who have been proven to be men particularly skilled within the line of their professional training. The opinion of a proven expert may be given in evidence upon facts within his knowledge, or it may be given upon a hypothetical question put to the expert and based upon the particular facts which have been given in evidence upon the trial of the case at issue. The opinion alone of a nonexpert upon a question of insanity is not evidence, unless that opinion is accompanied with a statement of the facts
was switching in there, on account of cotton being close to the track, and it was his special duty to watch the cotton.
The evidence shows that Napoleon Butler was specially employed to use his activities on the platform in protecting the cotton from the very falling sparks which seem to have set fire to the cotton, and he had slipped away and was quite a distance from the compress building when he first saw the fire consuming the cotton. Butler's testimony shows that the compress company, in recognition and appreciation of such duty-of a reciprocal nature, as I have mentioned-as was suggested and imposed on it by or in the compress company's knowledge of and consideration for the conditions and environments which were apparent to the compress company, and which, necessarily, attended the business activities of the company's management in handling its patrons cotton on the platform.
The evidence shows that the management of the compress company in responding to an estimate of its sense of duty, to itself and the owner of the compress building, as well as to its duties as the bailee of the several owners of the cotton which was destroyed by fire, kept a man especially appointed to discharge a service which it seems, in its own estimate of things, it fairly owed to all persons concerned. Treating the compress company as such a bailee, it seems that a failure to have had such a service or duty, as was assigned to Butler, performed by some of its servants, would have been, under the circumstances, a signal omission of the bailee's obligations. If the compress company had been the actual owner of the cotton, and it was now suing the defendant railway company for damages, because of its negligence in setting the cotton on fire, I think the facts relating to Butler's neglect of the special duties assigned to him would show a damaging state of facts against the legal right of the compress company to recover damages for negligence of the railway company. The service or duty which the compress company assigned to Butler seems to show or illustrate that company's view and interpretation of the nature of its obligations, under all the circumstances, as a bailee. It may be that the defendant railway company did not know of the presence of Butler, or of the special duties which had been assigned to Butler by the compress company; but the assumption by the compress company of such a duty as was assigned to Butler is very persuasive to show that it rightfully assumed some of the risks in the dangers of the situation. It is persuasive, too, to show that the compress company recognized, and was responding fairly for itself to, the nature of the reciprocal relations and obligations imposed on either of the litigant companies (treating the compress and railway companies as the litigants herein) by the apparent dangers inherent in the environments of the situation.
A new trial is granted.
must consider the further fact, if it be a fact, whether or not the defendant in fact acted upon suggestions made him by others verbally or in writing, or on his own ideas.
In this connection you must consider the further fact, if it be a fact, whether or not the defendant, in addition to speculating in cotton, speculated in stocks as well. Take into consideration all of his acts and conduct prior to, at the time, and since the commission of the offense charged; consider the fact, if it be a fact, that, in order to cover up his transactions with the bank and prevent detection, he used the name of S. M. Webster; consider the fact, if it be a fact, of the manner in which he entered charges and credits to various concerns who had dealings with the bank in which he was an officer; consider his manner and method adopted to cover up his act, if you believe from the evidence that such was his conduct; consider his confessions, his manner in making said confessions, and his statements as detailed by witnesses from the witness stand; consider all these facts and circumstances, I say, in connection with all the testimony in the case, in order that you may determine whether or not the defendant was sane at the time of the commission of the offense, remembering that the test of responsibility, where insanity is asserted, is the capacity to distinguish between right and wrong with respect to the act, and the absence of insane delusions respecting the same.
There is evidence in this case tending to show that Chisholm believed he could control the cotton market. Upon this phase of the case, you are instructed that if the evidence shows that the defendant had such belief and that it was the result of his belief that he could control the cotton market and not an insane delusion, and that he acted upon that belief, thinking that he had the right to take the money from the bank in order to carry out his belief, but at the same time he knew it was a violation of human law, and he would be punished therefor, in that event, it would not be an insane delusion upon the part of Chisholm, but would be an erroneous conclusion, and, being so, would not excuse him from the consequences of his act. And also if you further believe from the evidence that he came to the conclusion that he could control the cotton market, and this conclusion of his that he could control the cotton market was the sole inducement that caused him to take the money, he would not be guiltless, and would be responsible therefor. Upon the other hand, I charge you that if you should find from the evidence in this case that Alexander R. Chisbolm, the defendant, was possessed of a delusion that he believed that he could control the cotton market, and if you further find that such delusion and belief on the part of Alexander R. Chisholm was the product of a diseased brain, or if you have a reasonable doubt that such condition of brain existed at the time of the taking of the money, and that his act was at that time the result of such diseased brain, you will acquit him.
As I have already said, if you have a reasonable doubt of the guilt of the defendant, or a reasonable doubt of the defendant's sanity at the time of the commission of the offense, you must give him the benefit of the doubt and acquit him. The doctrine of the reasonable doubt is a legal right almost as old as law itself. Its purpose is to shield the