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Opinion of the Court.

ligence or carelessness of plaintiff, the plaintiff is not entitled to recover in this action, although they shall further find that in landing at or departing from the pier called Shamrock at the time described in the declaration the defendant's boat was not managed by the defendant's servants with skill and care."

"If from the whole evidence the jury are unable to determine whether the injuries complained of in the plaintiff's declaration were caused by the negligence of plaintiff, or by the negligence of defendant's servants, the verdict of the jury must be for the defendant."

The court also instructed the jury as follows: "If you find the defendant was not guilty of negligence, that ends the case. If you find that the defendant was guilty of negligence, then a second point of inquiry arises, whether the plaintiff was also guilty of negligence and whether his negligence contributed to the injury. If you find that the plaintiff was guilty of negligence, and that such negligence directly contributed to the injury, then it is not important to inquire how far such negligence contributed to it; for if he contributed to it at all, that would incapacitate the plaintiff from recovering."

The defendant requested the court to give this instruction: "If the jury shall find from the whole evidence that, at the time the defendant's boat was landing at the pier Shamrock, the plaintiff negligently or carelessly placed his left foot between the piles of said pier, or between the piles and the flooring of said pier, or between one of the piles in front of said pier and the flooring thereof, and allowed it to remain there while the boat was departing from said pier, and the foot so placed was injured while in that position, then the plaintiff is not entitled to recover in this action."

The defendant also requested the court to give the same instruction modified by omitting the words "negligently or carelessly."

The court declined to do so, and gave the instruction with those words, and added: "This is upon the hypothesis that you shall first find the facts spoken of and then that the plaintiff negligently or carelessly placed his foot in the position referred to. It, however, still leaves with you the question,

Opinion of the Court.

if you should find he did place his foot in such position, whether or not his act in doing that was such negligence as would disentitle him from recovering. There is a principle which you will bear in mind in regard to that. It is this: That a person in the position of the plaintiff is to keep his wits about him, to be on the alert so as not to be injured, and to exercise such vigilance or care as is proportionate to the hazard of the duty in which he is engaged. For instance, a man should be more cautious if he is running a dangerous engine than if he is sitting, as you are now, in a position of safety and attending to his usual avocation. His care must be in proportion to the hazard of his engagement. There is no proof here to show that this was a dangerous vocationstanding there attending to that wharf — and yet, nevertheless, there were certain hazards accompanying it, just as there are in almost all positions."

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To the refusal to give the modified instruction requested, and to so much of the instructions as is above printed in italics, the defendant excepted.

The court rightly refused to omit the words "negligently or carelessly," as requested, because to do so would be to assume that the plaintiff's placing his foot between timbers of the wharf and keeping it there while the steamboat was leaving was necessarily negligence, as matter of law. The court truly said there was no proof in the case that "standing there, attending to that wharf, was a dangerous vocation;" and properly submitted to the jury upon the whole evidence the question whether the plaintiff exercised due care at the time and place of the injury, and under the circumstances attending it. The phrase, "such negligence as would disentitle him from recovering," was evidently used as synonymous with "such negligence as contributed to the injury."

Only two other instructions given by the judge and excepted to by the defendant require to be particularly noticed.

The one, "The burden of proof is, however, upon the defendant to show that the plaintiff was negligent, and that his negligence contributed to the injury," was in accord with the uniform course of decision in this court. Railroad Co. v.

Opinion of the Court.

Gladmon, 15 Wall. 401; Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291; Hough v. Railway Co., 100 U. S. 213; Northern Pacific Railroad v. Mares, 123 U. S. 710, 720, 721. The other instruction was in these words: "There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence."

The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial. Radley v. London & Northwestern Railway, 1 App. Cas. 754; Scott v. Dublin & Wicklow Railway, 11 Irish Com. Law, 377; Austin v. New Jersey Steamboat Co., 43 N. Y. 75, 82; Lucas v. Taunton & New Bedford Railroad, 6 Gray, 64, 72; Northern Central Railway v. Price, 29 Maryland, 420. See also Williamson v. Barrett, 13 How. 101, 109.

It was argued that this instruction was inapplicable, because there was no evidence that the defendant knew the peril of the plaintiff, or had either time or opportunity, by the exercise of any degree of care, to guard against it; that if his negligence consisted in standing in a dangerous position too near the edge of the wharf, the defendant was not bound to anticipate his remaining in that position; but that his negligence in fact consisted in placing his foot between the flooring and a fender pile, which the defendant could not have been aware of or guarded against.

It is true that the instruction could not apply, and therefore could not be understood by the jury to apply, to the latter alternative. But upon the question of the plaintiff's position and attitude the evidence was conflicting; and it was

Opinion of the Court.

indisputable that the steamboat was approaching the wharf at his call, and for the purpose of receiving freight from his hands, and that her pilot and officers saw him as he waited on the wharf. The jury might well be of opinion that while there was some negligence on his part in standing where and as he did, yet that the officers of the boat knew just where and how he stood, and might have avoided injuring him if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. If such were the facts, the defendant's negligence was the proximate, direct and efficient cause of the injury.

Upon careful consideration of all the instructions given to the jury, we are of opinion that they were applicable to the evidence introduced; that they fully covered the instructions requested; and that they contained nothing of which the defendant has a right to complain.

A single question of evidence remains to be considered. A witness called by the defendant, testified that he had had about twelve years' experience in navigating the Potomac River, as wheelman, first mate, second mate, pilot and captain, but had never been at this wharf. He was asked "if, in his judgment, a position within two or three feet from the fender piles of a wharf constructed like the Shamrock pier was a reasonably safe place for a wharfinger to stand when a boat. was approaching in order to take off freight or to make a landing?" Objection was taken to this question by the plaintiff's counsel, and sustained by the court, because the witness had not shown himself to be a wharfinger; and the defendant excepted.

The ground of the exclusion of the question appears to have been that the judge was not satisfied of the qualifications of the witness as an expert upon the subject inquired of. Whether a witness is shown to be qualified to testify to any matter of opinion is always a preliminary question for the judge presiding at the trial, and his decision thereon is conclusive unless clearly erroneous as matter of law. Spring Co. v. Edgar, 99 U. S. 645; Stillwell & Bierce Co. v. Phelps, 130 U. S. 520; Montana Railway v. Warren, 137 U. S. 348. But

Opinion of the Court.

in this case, independently of any such consideration, the question whether the place where the plaintiff stood on the wharf was reasonably safe was one of the questions to be determined by the jury, depending on common knowledge and observation, and requiring no special training or experience to decide, and upon which therefore no opinions of witnesses were admissible. Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469; White v. Ballou, 8 Allen, 408; Simmons v. New Bedford Steamboat Co., 97 Mass. 361.

Judgment affirmed.

SELMA, ROME AND DALTON RAILROAD COMPANY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 12. Argued March 25, 26, 1891. Decided April 6, 1891.

In an action against the United States to recover for amounts due certain mail contractors under the appropriation in the sundry civil appropriation act of March 3, 1877, 19 Stat. 362, c. 105, which provided that "any such claims which have been paid by the Confederate States government shall not again be paid; " the burden of proof is on the plaintiff to show that his claim was not of the excepted class.

Whether, that appropriation having been covered into the Treasury, a claimant can maintain suit under that act in the Court of Claims without further legislation, is a question which the court has not deemed it necessary to consider.

APPEAL from the Court of Claims, where the judgment was against the claimant. The case is stated in the opinion.

Mr. George A. King for appellant.

Mr. Assistant Attorney General Cotton for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

The plaintiff, the Selma, Rome and Dalton Railroad Company, seeks in this action to recover the sum of $5915.80, which

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