202 U.S.

$720

Opinion of the Court.

Solicitors' fees, viz., $20 for attendance at final hearing and $2.50 for each deposition taken and

admitted in evidence, in accordance with Rev. Stat. § 824.

$10,146.37, total. The plaintiff objected to the allowance and the Clerk referred the matter to this court.

The only question of detail concerns the last item. The main objection is to the allowance of any costs at all. The power of the court to allow costs is not disputed. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 460. The former decree in this case allowed them, and in the stipulation for the appointment of a special commissioner the partics agreed that the costs should be "taxed by the court on the final disposal of the case, to be paid in such manner as the court may at that time determine." But it is said that it is inconsistent with the dignity of a sovereign State to ask for costs; that in boundary cases costs have been divided, and that the suit was not for a pecuniary interest, but only the performance of the duty of a sovereign to its citizens, for which no costs should be imposed.

But in many cases

So far as the dignity of the State is concerned, that is its own affair. The United States has not been above taking costs. United States v. Sanborn, 135 U. S. 271. As to the supposed rule in boundary cases, it is not absolute. of that kind both parties are equally interested to have the boundary settled, and whichever State begins the suit both equally are actors. Thus counter-relief was asked by the defendants in Nebraska v. Iowa, 143 U. S. 359 and Missouri v. Iowa, 160 U. S. 688. As to the nature of this suit, the plaintiff alleged serious pecuniary damage to itself by the deposit of great quantities of filth upon the portion of the bed of the Mississippi alleged to belong to it, and, in short, framed its bill like any ordinary bill by a private person to restrain a nuisance. The chief difference was in the size of the nuisance alleged. There is no indication that the defendants desired or needed the determination of this court, as States well might when

their jurisdiction was in doubt. So far as this point is concerned, there is no reason why the plaintiff should not suffer the usual consequence of failure to establish its case.

The only item specially discussed is the charge of $2.50 for each witness examined before the examiner, on the footing of "depositions" mentioned in Rev. Stat. § 824. There seems to have been some difference of opinion in the lower courts as to whether testimony given before an examiner could be treated as a deposition. See Strauss v. Meyer, 22 Fed. Rep. 467; 1 Foster's Fed. Prac., 3d ed., 727, § 330. In favor of so treating it are Ferguson v. Dent, 46 Fed. Rep. 88; Hake v. Brown, 44 Fed. Rep. 734; Ingham v. Pierce, 37 Fed. Rep. 647; The Sallie P. Linderman, 22 Fed. Rep. 557; Stimpson v. Brooks, 3 Blatchf. 456. See also St. Matthew's Sav. Bank v. Fidelity Casualty Co., 105 Fed. Rep. 161-163. The words of the statute are broad enough to embrace the testimony, unless they are taken very strictly, and the trouble to the parties in having to visit different places was similar to that caused by the taking of depositions adverted to by Judge Treat in Strauss v. Meyer. The case is quite distinct from that of testimony taken in court and reduced to writing by a reporter. We are of opinion that the item may be allowed.

Motion for costs allowed.

MCDERMOTT v. SEVERE.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 244. Argued April 20, 23, 1906.-Decided May 28, 1906.

The motorman of a trolley car, which was rapidly approaching a place where a small boy was trying to assist his smaller brother to extricate his foot from the track, made no effort to stop the car when he first saw the boys, supposing, as he testified, that they were playing on the track, as many boys did, until the last moment and that they would, as usual, get off the track in time; when the car was within a few yards of the boys he

saw and realized their situation, and did what he could to stop the car, but did not succeed in doing so and one of the boys was so injured that one of his legs had to be amputated. In the trial court the jury found the defendant company guilty, on a special verdict, of negligence in the improper construction of the crossing and also in the management of the car, and it was consented that the jury find that the motorman did all in his power to stop the car when he saw that the boy's foot was caught. In affirming the judgment entered on the verdict and passing on questions of sufficiency of evidence to submit questions to jury, Held, that: Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence; and if, from the facts admitted or conflicting testimony, such men may honestly draw different conclusions as to the negligence charged, the question is not one of law but of fact, to be settled by the jury under proper instructions; and in this case it was properly left to the jury to determine whether the motorman was guilty of negligence in not getting his car under control so that in event of probable injury he could quickly and promptly stop it. The court properly left it to the jury to determine whether the motorman exercised reasonable care to avoid injury to the boys which the circumstances required, taking into consideration that they were children and that older people are chargeable with the duty of care and caution towards them.

An exception of general character to a charge covering a number of elements of damages will not cover specific objections which in fairness to the court should be called to its attention in order that it may if necessary correct or modify its instructions.

It was not error for the trial court in the case of a boy who has lost a leg to charge that the jury can consider mental suffering past and future found to be the necessary consequence of the loss of his leg. The action being one for injury to the person of an intelligent being if the injury produced mental as well as bodily anguish it is impossible to exclude the former in estimating the extent of the injury.

Where the court instructs that the sum claimed should not be taken as a criterion but that it is a limit beyond which the jury cannot go there is no error.

THE facts are stated in the opinion.

Mr. George P. Hoover and Mr. Charles A. Douglas for plaintiff in error.

Mr. A. S. Worthington, Mr. William Meyer Lewin and Mr. Charles L. Frailey for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

This is an action to recover damages because of an injury received by Charles E. Severe, an infant, who was run over at a plank crossing of the railway company, the railroad then being in charge of the defendant, operating the same as receiver.

The plaintiff below recovered judgment in the Supreme Court of the District, which was affirmed in the Court of Appeals.

At the place of the accident there was a plank crossing, the planks laid between and on either side of the rails, at a point where a street was opened to the westward, and on the other side of the track a footpath, but no thoroughfare for vehicles. The crossing was one of the regular stopping places of the cars of the street railway near Riverdale, Maryland. The words "Cars stop here" were on both sides of the telegraph pole at the crossing. At the time of the injury plaintiff was six years and ten months old. His youngest brother Raymond was a little over five years of age, and with them another brother, Edward, about nine years old. The injured boy, at the time he was hurt, had his foot caught in a space between the rail and the edge of the plank on the inside. There was testimony tending to show that this opening was two to two and elevensixteenths inches wide. The accident happened between two and three o'clock in the afternoon of August 31, 1902. The testimony discloses that the boys had expected to meet their parents returning from a visit, about two o'clock that afternoon, and went to the crossing for that purpose. Edward the oldest boy, went to his father's house nearby to get a drink of water; while he was gone the youngest boy, Raymond, got his foot caught in the space between the west rail and the plank next the inside of the rail. Plaintiff came to the assistance of his little brother, whose foot he helped to extricate, and was himself caught in the space between the plank and the rail. Raymond ran to the house to notify Edward that

the plaintiff's foot was caught. Together the two boys ran back towards the crossing, and shortly thereafter the plaintiff was struck and so severely injured that it became necessary to amputate his leg below the knee.

In the view we take of this case we do not consider it necessary to state in detail the testimony as to the construction of the crossing and the alleged negligence in leaving the space in which the boy's foot was caught. Under the pleadings and the testimony the jury was directed to return a special verdict upon three propositions: 1. Was the defendant guilty of negligence in the improper construction or maintenance of the crossing? 2. Was the defendant guilty of negligence in the improper management of the car? 3. Did the motorman do all in his power to stop the car as soon as he saw the plaintiff's foot was caught in the space between the rail and plank? The jury answered the first and second questions in the affirmative; being unable to agree on the third, the plaintiff consented that it might also be answered in the affirmative.

In view of these special findings, if the issue concerning either of the first two of them was properly submitted to the jury upon sufficient evidence and found against the company, the judgment of the Court of Appeals must be affirmed.

In delivering the opinion of the Court of Appeals Mr. Chief Justice Shepard says:

"It is conceded, by reason of the special findings of the jury, that the defendant was guilty of negligence, not only in the construction and maintenance of the crossing, but also in the management and control of the car; that error in the instructions upon both points must be shown in order to obtain a reversal of the judgment, because either finding alone is sufficient support therefor."

It is insisted in argument here that the court ought to have taken the case from the jury because of the insufficiency of the evidence to sustain a verdict. In the view we take of the case as made and submitted concerning the conduct of the motorman at the time of the accident and the instructions given to