Where the evidence is conflicting, and no reasonable or proper
inference can be drawn from it as matter of law, the case should be
left to the jury. Knowledge of a defect in a car brake cannot be
imputed to the employee charged with keeping it in order when he
has had no opportunity to see it.
When an instruction to the jury embodies several propositions of
law, to some of which there are no objections, the party objecting
must point out specifically to the trial court the part to which he
objects in order to avail himself of the objection.
Ambiguous or too forcible expressions in a charge may be
explained or qualified by other parts of it, and if the charge does
not, as a whole, work injustice to the party objecting, the use of
such expressions will not be cause for granting a new trial.
A railroad company, receiving the cars of other companies to be
hauled in its trains, is bound to inspect such cars before putting
them in its trains, and is responsible to its employees for
injuries inflicted upon them in consequence of defects in such cars
which might have been discovered by a reasonable inspection before
admitting them to a train.
In an action by an executor of a deceased person against a
railroad company
Page 157 U. S. 73
to recover damages for the killing of the intestate, an employee
of the company, brought under the Act of February 17, 1885, c. 126,
23 Stat. 307, which provides that
"the damages recovered in such action shall not be appropriated
to the payment of the debts or liabilities of such deceased person,
but shall inure to the benefit of his or her family and be
distributed according to the provisions of the statute of
distributions,"
it is not error to charge the jury that, in estimating damages,
they may take into consideration the age of the deceased, his
health and strength, his capacity to earn money as disclosed by the
evidence, his family, who they are and what they consist of, and
from all the facts and all the circumstances make up their minds
how much the family would probably lose by his death.
Pennsylvania Co. v. Roy, 102 U.
S. 451, distinguished from this case.
The plaintiff's declaration claimed $10,000. He obtained a
judgment in the trial court for $8000. The appellate court affirmed
this judgment, and ordered that he recover "as in his declaration
claimed."
Held that these words did not have the effect of
increasing the sum actually recovered in the special term, and that
the inaccuracy was not sufficient ground for reversal.
This action was instituted under the provisions of the Act of
February 17, 1885, c. 126, 23 Stat. 307, to recover damages from
the Baltimore and Potomac Railroad Company because of the death of
Robert A. Brown, an inspector and repairer of cars in its employ,
which resulted from injuries to him caused by his having been
crushed between two freight cars of the defendant in the City of
Washington on the night of March 17, 1887.
There was evidence before the jury tending to show the following
facts:
For about five years prior to his death, Robert A. Brown, the
intestate of the defendant in error, was in the employment of the
Baltimore and Potomac Railroad Company as a car inspector. In the
evening of March 17, 1887, the night being dark and, in the
language of a witness, a "fearful" one, "snowing and the wind
blowing very hard," he was on duty in what is called the "Jersey
Avenue Freight Yard," in company with his uncle, who was also a car
inspector. A fast freight train came in from Baltimore, and upon
examination he discovered a defective drawhead (called by railroad
men a "bull nose") on one of the cars. The cars were all coupled
together, and it was therefore impossible to repair
Page 157 U. S. 74
the defective drawhead without the assistance of yardmen. Brown
thereupon requested the yardmen to "cut" the train, so that the
defective drawhead could be reached and repaired. He and his uncle
asked the conductor, Phillips, who had control of the shifting
engine, to have that done, saying to him that if he would give them
from five to seven minutes, they would repair the car, and that, if
not repaired, it would be pulled to pieces. Thereupon the conductor
ordered a brakeman, with the yard engine, "to cut the train, and
give them a chance to fix it." As soon as the train was cut, Brown
and his uncle went to work on the defective car, which was the
fifth one from the tender. The cut was between the fourth and fifth
car. The deceased took the drawhead out and repaired it. Just as
his uncle was about to drop the key in, which holds it together, he
felt the cars "going away from him." He immediately came out from
under the car, and Robert A. Brown was "crushed in between the
cars."
When the train of cars was cut, those attached to the engine
were pulled forward, leaving a gap in the train. Notice was not
given of any purpose after cutting the train to detach the engine
from the four cars it pulled away in order that Brown and his uncle
might reach and repair the drawhead. The two cars next to the one
to be repaired were heavily loaded with coal. The grade from South
Capitol Street to New Jersey Avenue was quite steep. While deceased
was engaged in the work of repairing, his back being towards the
engine that had been used to draw some of the cars away, so that
the inspectors could do their work, the engine was detached from
the cars attached to it, and sent off on other duty. The result was
that the cars that had been attached to the engine came back down
the grade towards the defective car and against Brown and the car
he was repairing. An effort was made to stop them by the use of a
brake on one of the cars -- a "foreign" car -- but the brake was
insufficient for that purpose and was itself out of order and
defective.
There was evidence tending to show that car inspectors were not
expected or required to repair foreign cars. A car inspector
testified:
"There are cars that come into our yards
Page 157 U. S. 75
which are out of repair, and there are cars that come in there
from other companies. Our company don't hold us responsible for
fixing those cars, because we don't get paid for it. We are
instructed not to use our materials unless it was for a broken
drawhead, and then we would have to put in another drawhead.
Sometimes we do work, and card it to go to other companies. There
are a great many cars come in that way, marked 'Defective
Brake.'"
This witness also testified upon the question of the defective
brake as follows:
"He was a car inspector in the employ of the Baltimore and
Potomac Railroad Company; that Robert A. Brown, the deceased, was
the chief car inspector in the Jersey yard; that he was acquainted
with a man named Downs, who was supposed to be the chief car
inspector; that on the next day after the accident, or on the
evening of the next day after the accident, the witness went, in
company with Mr. Downs, to examine this car with the defective
brake; that he was not positive whether it was on the day after the
accident or the second day after the accident that they went to
examine the said car with the defective brake; that he went with
Downs to assist him to find the car; that they found it, and made
an examination of the brake, and that the result of the examination
was that they found the brake was a defective one; that the car was
marked 'Defective Brake' on the end of the car; that the witness
got up on top of the car, and tried both the top and end brake;
that he first put the brake down, and then came down and examined
it, and found that the bottom connection was too short, and that
'if it had been a long connection, or connected all along, it would
have been a pretty sufficient brake;' that this car was brought up
from the Jersey yard during the night, or in the morning, along
with a draft of eighteen or twenty or twenty-five other cars; that
he did not know whether this car with the defective brake was
hauled by another engine or was shifted backwards and forwards
after the time of the accident or not; that the car was still
loaded with oil; that chalk marks 'Defective Brake' were on the car
when it got into the Maryland avenue yard; that he did not know how
the car got there; that he went with
Page 157 U. S. 76
Mr. Downs to examine this car at about half-past six or seven
o'clock in the evening; that he examined the car with the defective
drawhead shortly after the accident; that he saw the tools lying
around there which were used for the purpose of fixing cars, and
that he examined the drawhead and saw what it needed; that he told
the men to look out for him, and he got under the car and did the
work; that it took him about three minutes."
On cross-examination, he further said
"that he did not know that the brake which he examined was the
brake on the car connected with the accident, except that he was
told that that car was the cause of the accident; that he did not
know it as a fact; that Robert A. Brown was his superior officer --
'our leader,' or foreman in the yard; that he (witness) first
discovered the chalk mark 'Defective Brake' when he went to examine
the car; that it was marked on the end of the car, and on both
sides."
After the train was cut and space left between the cars that
were pulled away and the defective car, Brown had no reason to
believe that the former would be allowed to run back upon him. On
the contrary, when the train was cut, he had the assurance of the
conductor that the cars pulled ahead would be left standing where
they were after the cutting of the train had been accomplished.
The conductor, a witness for the defendant company, gave this
account of the affair:
"He was in the employ of the defendant the Baltimore and Potomac
Railroad Company as a conductor in the freight yard in this city;
had been so employed by the defendant in this freight yard for
about twelve years; was there at the time of accident, running with
the shifting engine No. 327; that on the night of the 17th of
March, 1887, the night of the accident, he was engaged in the
'Jersey Yard' in shifting cars; that they got down to the Jersey
yard about 9:55 o'clock in the evening, and took down with them
about twenty-five cars, which they first shifted around where they
belonged; that it took them about half an hour to dispose of those
cars; that they went over onto the other side of the yard to shift
the fast freight which was coming in from the north; that said
train was brought in by engine No.
Page 157 U. S. 77
307, and placed on No. 1 track; that said fast freight train
arrived after they got down to the Jersey yard about ten or fifteen
minutes; that they went to work upon said train to get out such
cars as were to go south on the fast freight; that there were not
over six cars in the said freight train to go south; that the cars
which were for Washington were put over on another track; that then
Robert A. Brown, the deceased, told them that they had a broken
bull nose down there which he wanted to fix; that he asked the
witness to pull the cars apart, and witness told him that he would
go down there and pull them apart; that he went down there and
pulled the cars apart; that witness told deceased he was not going
to shift any more of those cars; that said cars were pulled apart
to a distance of about forty feet; that Brakeman Hillary pulled the
pin and uncoupled the cars in the first instance, and that the
witness ordered the cars to be cut loose; that at that time, he was
talking to Robert A. Brown, who was standing right where the cut
was made; that after the pin was pulled, the witness (Phillips)
gave the signal to pull ahead, and then went up towards the engine;
that he stopped the engine when Robert A. Brown, the deceased,
said, 'that will do,' by giving the engineer the shut-off signal
with his lamp by swinging it; that thereupon the engineer (Smith)
called to him, and he went up towards the engine; that the engineer
then said he had no more water to do any shifting with, and I told
him I hadn't anything to do, and they were not going to do any more
shifting on that train, and I asked him to take a load of stock
from the lower end up to the warehouse, and stop at Sixth Street
and get water. He said, 'Well, I will try it.' So I said to
Brakeman Teiling, when I stopped talking to the engineer, 'How is
it?' He said, 'All O. K.' I said, 'Go up and set this brake.' He
got up and put it on. I told Mr. Brown, after I pulled the cars
apart, that I was going to leave them standing there."
There was evidence tending to show that a full crew with a
shifting engine in a yard is six men -- an engineer, a fireman, a
conductor, and three brakemen -- and that on the night Brown was
killed, there were only two brakemen on the train.
Page 157 U. S. 78
There was also evidence bearing upon the question whether the
deceased was guilty of contributory negligence in not displaying a
blue light while repairing the defective drawhead in conformity, as
the defendant claimed, with one of the printed rules of the
company.
Page 157 U. S. 82
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This suit was instituted under the Act of Congress approved
February 17, 1889, 23 Stat. 307, c. 126, providing:
"SEC 1. That whenever, by an injury done or happening within the
limits of the District of Columbia, the death of a person shall be
caused by the wrongful act, neglect, or default of any person or
corporation, and the act, neglect, or default is such as would, if
death had not ensued, have entitled the party injured, or, if the
person injured be a married woman, have
Page 157 U. S. 83
entitled her husband, either separately or by joining with the
wife, to maintain an action and recover damages, the person who or
corporation which would have been liable if death had not ensued
shall be liable to an action for damages for such death
notwithstanding the death of the person injured, even though the
death shall have been caused under circumstances which constitute a
felony, and such damages shall be assessed with reference to the
injury resulting from such act, neglect, or default causing such
death, to the widow and next of kin of such deceased person,
provided that in no case shall the recovery under this act
exceed the sum of ten thousand dollars,
and provided
further that no action shall be maintained under this act in
any case when the party injured by such wrongful act, neglect, or
default has recovered damages therefor during the life of such
party."
"SEC. 2. That every such action shall be brought by and in the
name of the personal representative of such deceased person, and
within one year after the death of the party injured."
"SEC. 3. That the damages recovered in such action shall not be
appropriated to the payment of the debts or liabilities of such
deceased person, but shall inure to the benefit of his or her
family, and be distributed according to the provisions of the
statute of distributions in force in the said District of
Columbia."
The assignments of error in the brief filed by the plaintiff in
error are seven in number, and cover all the material points in the
case. We assume that any exceptions taken at the trial and not
embraced by those assignments have been abandoned.
1. The first assignment of error is that the court below erred
in refusing at the close of all the evidence to direct a verdict in
favor of the defendant. It need only be said that the case was one
peculiarly for the jury under proper instructions as to the law of
case. There was no reasonable or proper inference from the
evidence, as matter of law, that would have justified the
withdrawal of the case from the jury.
Phoenix Ind. Co. v.
Doster, 106 U. S. 30,
106 U. S. 32;
Del. & Lackawanna Railroad v. Converse, 139 U.
S. 469,
139 U. S. 472;
Railroad Co. v. Cox, 145 U. S. 594,
145 U. S.
606.
Page 157 U. S. 84
2. The second assignment relates to the granting, on plaintiff's
request, of the following instructions:
"The jury are instructed that the employees of a railroad
corporation have a right to expect that the corporation will, as
far as possible, provide, for their protection in moving its
trains, sufficient machinery, in good order and condition, and that
it will exercise reasonable care and caution not to use cars in its
trains having defective brakes. If, therefore, the jury believe
from the testimony that the brake set by the brakeman Teiling was
defective at the time of the accident, and that, by the exercise of
reasonable care and caution, the defendant could have known said
brake to be defective, then it is liable, and their verdict must be
for the plaintiff, provided they believe from the testimony that
the accident was caused by reason of said defective brake."
"The jury are instructed that if they believe from the evidence
the brakes set by Brakeman Teiling as detailed in the evidence
would, if then in good order, have prevented the cars from moving,
or at least would have tended to retard such movement so as to have
given sufficient time to notify Brown of his danger and to have
enabled him to escape, then if the jury believe from the evidence
that he brake was not in good order at the time of the accident,
and further that the defendant by the exercise of reasonable care
could have known of its defective condition, their verdict must be
for the plaintiff."
Two objections have been made by counsel in this Court to those
instructions.
The first one is that the railroad company employed the deceased
himself to examine the brake in question, and to repair it if it
was not in proper condition; that if the defect was chargeable to
the negligence of anyone, it was to his negligence, and that the
above instructions ignored the question of his contributory
negligence.
There was no evidence whatever tending to show that Brown was
guilty of negligence in not having discovered, immediately upon the
arrival of the train or before he was killed, that the brake was
defective or insufficient. The proof did not show at what time it
became defective, or that the
Page 157 U. S. 85
car on which it was placed had ever before been in Washington.
As soon as he observed a defective drawhead in one of the cars --
which was as soon as the train arrived at the company's yard -- he
set about to repair it, and while engaged in that particular work
was killed. He had therefore no opportunity, after the train
reached the yard, to investigate the condition of the brakes, and
consequently the issue as to the defectiveness of the brake in
question was made by the court to depend upon the inquiry whether
due care was taken by the railroad company, represented by agents
or employees other than Brown, in providing proper appliances on
its cars. And that was the theory upon which the company itself
proceeded in its defense, as is apparent from one of the
instructions asked by it in these words:
"Unless the jury shall be satisfied from the evidence that a
defect in the brake which was set by Teiling on the stock car just
before the accident was the sole cause of the injury to Robert A.
Brown, the plaintiff's intestate, and that said brake was in such
defective condition at the time the said stock car was by the
defendant put into its train, the plaintiff cannot recover, and the
burden of proof is upon the plaintiff to show by evidence
satisfactory to the jury that said brake was in such defective
condition before said car was by the defendant put into the said
train."
It is not an objection to the instructions given on motion of
the plaintiff that they were silent on the question of contributory
negligence. The defendant did not ask any specific instruction on
that point. Nevertheless the court, when it charged the jury, said
upon that subject all that was necessary:
"Make up your mind first, within the instructions of the court,
was this defendant negligent? Was that a bad brake? If it had been
good one, would it have held this train? If you say the brake was
all right, that ends the case. If you say that it was not all right
and that a good brake would have held the car, then the next
question is was the plaintiff's intestate himself negligent,
imprudent, or careless, contributing to the injury directly, and if
so, the plaintiff could not recover; if not, he could recover.
"
Page 157 U. S. 86
The next objection urged by the defendant in support of its
second assignment of error is that he words "as far as possible" in
the first of the above instructions imposed upon the railroad
company a higher degree of care in selecting and keeping in order
its appliances and machinery than the law requires. It may be
observed that the objection to the instruction containing the
particular words complained of was general in its nature. The
instruction embodied some propositions of law to which no objection
could be properly made, and it was the duty of the defendant to
point out specifically the part of the instruction which it
regarded as announcing an erroneous principle of law. But we need
not put our decision entirely upon this ground, for it is clear
that the jury could not have been misled by the use of the words
"as far as possible." The instruction in which those words are
found distinctly informed the jury that the law imposed upon the
company the duty of exercising "reasonable care and caution." And
in its charge to the jury, the court said:
"Was that brake in proper, reasonable condition? If it was not
in a proper, reasonable condition, did the cars roll back in
consequence of that infirmity? Was the accident traceable to that?
I will say here, gentlemen, that if you should be satisfied from
the evidence in this case that this brake was in a reasonably good
condition, in good ordinary repair, and there was nothing wrong
about it, then the plaintiff cannot recover, because that would end
the case."
Again:
"So you see, gentlemen of the jury, the only question, so far as
the negligence of the defendant is concerned, is was the brake
defective, out of order, not in reasonable repair, not reasonable
for the occasion, and if not, was such fact the cause of the
accident or did it materially or directly contribute to it?"
Taking the instructions and the entire charge of the court
together, it is manifest that the jury understood the words "as far
as possible" -- if they thought at all of mere words -- to mean "as
far as possible," exercising reasonable care and caution.
In
Rogers v. The
Marshal, 1 Wall. 644,
68 U. S. 654,
Mr. Justice Davis, speaking for the Court, well observed that "a
nice criticism
Page 157 U. S. 87
of words will not be indulged when the meaning of the
instruction is plain and obvious, and cannot mislead the jury." And
in
Evanston v. Gunn, 99 U. S. 660, Mr.
Justice Strong said:
"Sentences may, it is true, be extracted from the charge which,
if read apart from their connection, need qualification. But the
qualifications were given in the context, and the jury could not
possibly have been misled."
And so in
Tweed's Case,
16 Wall. 504,
83 U. S.
516:
"Courts are not inclined to grant a new trial merely on account
of ambiguity in the charge of the court to the jury, while it
appears that the complaining party made no effort at the trial to
have the point explained."
See also The Sibyl, 4
Wheat. 98.
What the court said to the jury in respect of the point now
under consideration was in harmony with the principles announced in
Hough v. Railway Co., 100 U. S. 213,
100 U. S. 218,
where it was said that a railroad corporation was under an
obligation
"to provide and maintain in suitable condition the machinery and
apparatus to be used by its employees -- an obligation the more
important, and the degree of diligence in its performance the
greater, in proportion to the dangers which may be
encountered."
Again, in the same case:
"To guard against the misapplication of these principles, we
should say that the corporation is not to be held as guarantying or
warranting the absolute safety under all circumstances, or the
perfection in all its parts of the machinery or apparatus which may
be provided for the use of employees. Its duty in that respect to
its employees is discharged when, but only when, its agents whose
business it is to supply such instrumentalities exercise due care
as well in their purchase originally as in keeping and maintaining
them in such condition as to be reasonably and adequately safe for
use by employees."
See also Northern Pacific Railroad v. Herbert,
116 U. S. 643;
Washington & Georgetown Railroad v. McDade,
135 U. S. 554,
135 U. S.
569.
3. The third assignment of error is that the case was tried on
the theory that the accident was attributable to a defective brake,
contrary to the case made by the declaration. We do not find in the
record any specific exception upon which
Page 157 U. S. 88
this assignment is based. But if there were one, it could not
avail the defendant. It was alleged in the declaration that "by
reason of the negligence and default of the defendant, its
servants, agents, and employees," the car on which the deceased was
working
"was run into by another of the defendant's cars, whereby the
plaintiff's intestate, by collision of the said cars, was so
crushed and injured that death immediately followed."
Whether these allegations were or were not sufficient to allow
proof that the collision was the result of a brake so defective
that it could not control the cars, which ran back against the
deceased and killed him, we need not stop to consider, because both
parties asked instructions upon the theory that the jury were to
inquire as to the defectiveness of the brake. An instruction asked
by the defendant, and which is given above, involved the inquiry by
the jury whether the defectiveness of the brake, if it existed, was
the sole cause of Brown's death. Another instruction asked by it
assumed that the condition of the brake was a matter to be inquired
of by the jury. That instruction was as follows:
"If the jury shall find from the evidence that the injury to
Robert A. Brown resulted solely in consequence of some defect in
the brake set by Teiling on the open or stock car next to engine
and tender, and that the said stock car was not the property of the
defendant, but belonged to another railroad company, had been on
the same evening and a short time prior to the accident brought to
the defendant's yard, in Washington, in a freight train, with the
brake in such defective condition, then the fact (if the jury shall
so find the fact) that such injuries did so result cannot be
considered as evidence to support the charge of negligence against
the defendant, and the defendant is entitled to the verdict."
So that no error was committed in submitting to the jury the
question whether the brake was defective and whether that defect,
if found to be the cause of Brown's death, could have been
discovered by the exercise of due care.
4. The fourth assignment of error was the refusal of the court
"to give the two instructions asked by counsel for the defendant in
respect to the degree of care required as to foreign
Page 157 U. S. 89
cars." The instructions referred to are those above given.
The first of the two instructions asked by the defendant, so far
as it related to this subject, was properly refused because it
restricted all liability of the defendant for the defective brake
to the time when the car on which it was placed was put into its
train -- in other words, as the court below well said, if the brake
was plainly shown to have become broken while on the trip from
Baltimore to Washington, there would, according to the defendant's
instructions, be no liability whatever upon it for an injury
arising from the use of the defective brake after the car reached
its yard in the latter city. That view cannot be approved.
The question as to the duty of a railroad corporation to take
due care that foreign cars hauled by it shall be in such condition
as to be safely handled by its own employees was carefully
considered by the court below. Mr. Justice Hagner, after observing
that the great through trains, especially of freight cars, are
composed of cars belonging to different roads, the proportion of
such cars belonging to the particular road over which they are
passing being very small, said:
"They come from all portions of our country, and often from
Canada and Mexico. They are transported along each successive road
for hire, and only for that consideration. The employees of such
road are obliged to handle every car in the train in the same
manner, without respect to its ownership, and are exposed to the
same dangers from defects of construction or mechanical appliances
that may attend the management of the cars belonging to the road
that employs them. It would be most unreasonable and cruel to
declare that while the faithful workman may obtain compensation
from a company for defective arrangement of its own cars, he would
be without redress against the same company if the damaged car that
occasioned the injury happened to belong to another company."
The same question arose in
Gottlieb v. N.Y. & Lake Erie
Railroad, 100 N.Y. 466, which was an action by a brakeman to
recover for personal injuries received by him
Page 157 U. S. 90
while he endeavored, in obedience to orders, to couple two cars
that had broken apart in the nighttime while under way. It appeared
that the cars were not provided with proper bumpers, and the
absence of such bumpers was the cause of the injuries inflicted
upon the brakeman. The Court of Appeals of New York said:
"The defect was an obvious one, easily discoverable by the most
ordinary inspection, and it would seem to be the grossest
negligence to put such cars into any train, and especially into a
train consisting of cars of different gauge. But those two cars did
not belong to the defendant. They belonged to other companies, and
came to it loaded, and it was drawing them over its road to their
destination. They were in good repair, and the defects were in
their original construction, they being just as they were
originally made. The defendant claims that it was bound to receive
and transport these cars over its road, and was under no
responsibility for any defects in their structure, and that the
plaintiff, upon entering its employment, assumed all risks from
such defects."
After a review of some of the cases, the court proceeded:
"It will thus be seen that the utterances of judges as to
responsibility of one company for the defective cars of another
company drawn over its road are not entirely harmonious, and we
think all the authorities hold that the company drawing the cars of
another company over the road owes, in reference to such cars, some
duty to its employees. It is not bound to take such cars if they
are known to be defective and unsafe. Even if it is not bound to
make tests to discover secret defects, and is not responsible for
such defects, it is bound to inspect foreign cars just as it would
inspect its own cars. It owes the duty of inspection as master, and
is at least responsible for the consequences of such defects as
would be disclosed or discovered by ordinary inspection. When cars
come to it which have defects visible or discoverable by ordinary
inspection, it must either remedy such defect or refuse to take
such cars -- so much at least is due from it to its employees. The
employees can no more be said to assume the risks of such defects
in foreign cars than in cars belonging to the company. The rule
Page 157 U. S. 91
imposing this responsibility is not an onerous or inconvenient
or impracticable one. It requires, before a train starts and while
it is upon its passage, the same inspection and care as to all the
cars in the train."
In a later case --
Goodrich v. N.Y. Central & Hudson
River Railroad, 116 N.Y. 398, 401 -- the same principle was
announced, the court saying:
"It was decided in
Gottlieb v. N.Y., L.E. & W. R.
Co., 100 N.Y. 462, that a railroad company is bound to inspect
the cars of another company used upon its road just as it would
inspect its own cars; that it owes this duty as master, and is
responsible for the consequences of such defects as could be
disclosed or discovered by ordinary inspection; that when cars come
in from another road which have defects visible or discernible by
ordinary examination, it must either remedy such defects or refuse
to take them. This duty of examining foreign cars must obviously be
performed before such cars are placed in trains upon the
defendant's road or furnished to its employees for transportation.
When so furnished, the employees whose duty it is to manage the
trains have a right to assume that so far as ordinary care can
accomplish it, the cars are equipped with safe and suitable
appliances for the discharge of their duty, and that they are not
to be exposed to risk or danger through the negligence of their
employer."
The defendant, in one of its requests for instructions, assumed
what the law will not sanction -- that the defendant was under no
duty to ascertain the condition of cars belonging to another
company which constitute a part of its train and which are to be
handled by its employees.
We are of opinion that sound reason and public policy concur in
sustaining the principle that a railroad company is under a legal
duty not to expose its employees to dangers arising from such
defects in foreign cars as may be discovered by reasonable
inspection before such cars are admitted into its train.
5. The fifth assignment relates to so much of the charge of the
court as is set forth in the thirteenth and fifteenth bills of
exceptions. It is sufficient to say that the exception in each
instance was in gross to a series of propositions some of
Page 157 U. S. 92
which, at least, were clearly right. Neither exception can be
regarded.
Beaver v.
Taylor, 1 Wall. 637;
Moulor v. Am. Life Ins.
Co., 111 U. S. 335,
111 U. S. 337;
Conn. Life Ins. Co. v. Union Trust Co., 112 U.
S. 250,
112 U. S. 261;
Burton v. West Jersey Ferry Co., 114 U.
S. 474,
114 U. S.
476.
6. The sixth assignment of error relates to the following part
of the charge to the jury:
"Now manifestly, you cannot estimate in dollars and cents
exactly what the damages are in a case of this kind, if there be
any at all. That is not possible. But you may and you should take
into consideration the age of the man, his health and strength, his
capacity to earn money as you discover it from the evidence, his
family -- who they are and what they consist of -- and then,
gentlemen, from all the facts and all the circumstances, make up
your mind how much this family, if anything, probably lose by his
death, and that would be how much had this family a reasonable
expectation of receiving? how much had they a reasonable
expectation of receiving while he lived if he had not been
killed?"
It is suggested by counsel that this charge was in conflict with
the decision of this Court in
Pennsylvania Co. v. Roy,
102 U. S. 451,
which was an action to recover damages for personal injuries caused
by the negligence of the defendant. It was there said:
"There was, however, an error committed upon the trial, to which
exception was duly taken but which does not seem to have been
remedied by any portion of the charge appearing in the bill of
exceptions. The plaintiff was permitted, against the objection of
the defendant, to give the number and ages of his children -- a son
ten years of age and three daughters of the ages, respectively, of
fourteen, seventeen, and twenty-one. This evidence does not appear
to have been withdrawn from the consideration of the jury. It
certainly had no legitimate bearing upon any issue in the case. The
manifest object of its introduction was to inform the jury that the
plaintiff had infant children dependent upon him for support, and
consequently that his injuries involved the comfort of his family.
This proof, in connection with the impairment of his ability to
earn money, was well calculated to
Page 157 U. S. 93
arouse the sympathies of the jury, and to enhance the damages
beyond the amount which the law permitted -- that is, beyond what
was, under all the circumstances, fair and just compensation to the
person suing for the injuries received by him. How far the
assessment of damages was controlled by this evidence as to the
plaintiff's family it is impossible to determine with absolute
certainty, but the reasonable presumption is that it had some
influence upon the verdict."
The question of damages in the present case must be determined
by the special statute under which the plaintiff sued, and not by
the general recognized principles in the law of torts. In
Roy's
Case, the plaintiff himself was the party injured. He sued for
compensation in damages for the personal injuries he received.
Here, death ensued from the wrongful act of the defendant. So the
jury found. And the plaintiff is the personal representative of the
party injured. The statute giving the remedy expressly excludes the
creditors of the deceased from any interest in the recovery, and
declares not only that the judgment shall inure exclusively to the
benefit of his family, but that the damages, not exceeding $10,000,
shall be assessed, "with reference to the injury" done, "to the
widow and next of kin of such deceased person." Under such a
statute, it is entirely proper that the jury should take into
consideration the age of the deceased, his health, strength,
capacity to earn money, and family. The injury done to a family
consisting of a widow and helpless young children who depended for
support entirely upon the labor of a husband and father whose death
was caused by the wrongful act of others is much greater than would
be done to any "next of kin" able to maintain themselves, and who
have never depended, and had no right to depend, upon the labor or
exertions of the deceased for their maintenance.
7. The seventh assignment of error is that the judgment of the
general term affirming the judgment of the special term was
erroneous in declaring that the plaintiff recover "as in his
declaration claimed." The judgment in the special term was for
$8,000. Although the amount claimed in the declaration was $10,000,
the affirmance of the judgment
Page 157 U. S. 94
of the special term is necessarily limited to the amount of the
judgment so affirmed, and the words "as in his declaration
claimed,� carelessly put into the final order of the general term,
cannot have the effect to increase the sum actually recovered in
the special term. If the attention of the general term had been
called to the form of the judgment, it would have been put in
proper shape. Such an inaccuracy in form in not sufficient ground
for reversal. The judgment to be enforced is the one rendered in
the special term.
We perceive no error in the record to the prejudice of the
defendant, and the judgment is
Affirmed.
