By the laws of Panama, a railroad company is liable for personal
injuries resulting from the criminal negligence of its servant in
running an engine at a rate prohibited by the Panama Police Code.
P. 252 U. S.
The rule of respondeat superior
applies in Panama, in
such cases, and due care in selecting the servant is not a defense
for the railroad company. P. 252 U. S.
Page 252 U. S. 309
In Panama, under Civil Code, Art. 2341, as well as in the Canal
Zone, damages for physical pain are allowable in a personal injury
case. P. 252 U. S. 313
Panama R. Co. v. Bosse, 249 U. S. 41
250 F. 989 affirmed.
The case is stated in the opinion.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Topping was struck by a locomotive of the Panama Railroad
Company while riding a horse in the City of Colon. He sued the
company for damages in the District Court of the Canal Zone,
alleging negligence, and recovered a verdict. The judgment entered
thereon was affirmed by the Circuit Court of Appeals for the Fifth
Circuit (250 F. 989), and the case is here on writ of error.
The main contentions of the company are here, as in Panama
Railroad Co. v. Bosse, 249 U. S. 41
the trial court erred in holding applicable the rule of
and the rule permitting recovery for
physical pain suffered. The important difference in the two cases
is this: there, the accident occurred in the Canal Zone; here, in
the Republic of Panama. The company insists that the Bosse
case is not controlling, because the questions affecting liability
must here be determined by the law of that republic, the place
where the accident occurred. Slater v. Mexican National
Railroad Co., 194 U. S. 120
Cuba Railroad Co. v. Crosby, 222 U.
. The law
Page 252 U. S. 310
of Panama is pleaded by both parties and evidence thereon was
introduced by both, but we are not limited to this evidence, as
they agree that we may take judicial notice of the law of Panama
existing February 26, 1904, when the Canal Treaty was proclaimed,
and that, in the absence of evidence to the contrary, the law then
prevailing there will be presumed to have continued in force.
The company contends that the jury should have
been instructed that, under the law of Panama, the company was not
liable if the accident resulted from a criminal act of its
employees, there being evidence that it was due to running the
locomotive at a rate of speed prohibited under penalty by the
Police Code of Panama. That Code, known as Ordinance No. 87 of the
year 1896, provides (Articles 488, 489):
"When a tramway crosses a town, as well as when it passes by a
gate or viaduct, it shall not travel at a greater speed than that
of a wagon drawn by horses at a moderate trot; in case of an
infraction, the conductor or the administrator of the company
subsidiarily shall pay a fine of 10 to 100 pesos, without prejudice
to the responsibility, civil or penal, to which he may be subject
by reason of the damage fault or tort. . . ."
"This article . . . shall be applied to railroads when they
enter cities or towns."
The Panama Law No. 62 of 1887 had provided in Article 5:
"Railroad companies are responsible for the wrongs and injuries
which are caused to persons and properties by reason of the service
of said railroads and which are imputable to want of care, neglect,
or violation of the respective police regulations which shall be
issued by the government as soon as the law is promulgated."
And Article 2341 of the Civil Code provides:
"He who shall have been guilty of an offense or fault which has
caused another damage is obliged to repair it,
Page 252 U. S. 311
without prejudice to the principal penalty which the law imposes
for the fault or offense committed."
It would seem clear from a reading of these provisions that the
company would not be relieved from liability in damages for
injuries resulting from the negligence of its employee merely
because the negligent act was also punishable as a crime. And the
Colombian authorities to which our attention has been called tend
to confirm this construction. [Footnote 1
] There seems to have been a rule of Practice
under the Colombian Judicial Code (Article 1501 [Footnote 2
]) by which, if the civil action
and the criminal action arising out of the same acts are not
brought at the same time, the civil action cannot be prosecuted
until the conclusion of the criminal action with the condemnation
of the delinquent. But such rule obviously can have no application
here, among other reasons, because it refers to the case where the
same person is liable both civilly and criminally. Here, it is the
engineer who is liable criminally under the Police Code and the
company against whom civil liability is being enforced.
The company contends that, by the law of
Panama, it cannot be held liable for the injury caused by the
negligence of its engineer if it was careful in selecting him,
because the law of Panama does not recognize liability without
fault. This contention was made and rejected by the Supreme Court
of Colombia in a case similar to the case at bar. [Footnote 3
] There, suit was brought against
the impresario of a railway to recover for the loss of a house by
fire due to the negligent operation of locomotive.
Page 252 U. S. 312
The court rested the liability upon § 2347 of the Civil Code,
] declaring that all
doubt as to the existence of the necessary dependency was removed
by Article 5 of Law 62 of 1887, which,
"without in any way mentioning the dependents, employees, or
workmen of railway enterprises, makes their impresarios responsible
for the damages and injuries which they may cause to persons or to
property by reason of the service of the said roads."
The court continues:
"and there is not in the record any proof whatever that any care
or precaution, either on the part of the impresario or the
engineer, had been taken to prevent the fire, the proof that the
impresario on his part had exercised much care in the selection of
his employees not being sufficient in the opinion of the court,
because the diligence and care here treated of is that which ought
to have been exercised in order to prevent an injury that could
have been easily foreseen. [Footnote 5
This case seems to overrule, in effect, the principal authority
to which the plaintiff in error has referred us [Footnote 6
] -- in fact, it is not unlikely
that such was the object of Article 5 of Law 62 of 1887.
Page 252 U. S. 313
The contention that the lower courts erred in
allowing recovery for physical pain was made and overruled in
Panama Railroad Co. v. Bosse, supra,
p. 249 U. S. 47
the decision there rested upon Article 2341 of the Civil Code of
Panama, it is applicable whether the lex loci
should be held controlling as to such damages.
Exception was also taken to the ruling that "if the plaintiff has
developed tuberculosis of the spine as a result of the injuries
received," the tuberculosis may be considered as an element of
damages. The instruction was given with such explanations as to
have been clearly unobjectionable.
Cecilia Jaramillo de Cancino v. The Railroad of the
Supreme Court of Justice of the Republic of Colombia,
XIII Judicial Gazette, Nos. 652-653, decided December 16, 1897.
Ruperto Restrepo v. Sabana Railway Company,
Court of Justice of the Republic of Colombia, III Judicial Gazette,
No. 353, pp. 332-334, decided July 19, 1892.
Cancino v. The Railroad of the North, supra, note 1
"Every person is responsible not only for his own actions for
the purpose of making good the damage, but for the act of those who
may be under his care."
"Thus, the father, and failing him the mother, is responsible
for the act of the minor children who live in the same house."
"Thus, the tutor or guardian is responsible for the conduct of
the pupil who lives under his protection and care."
"Thus, the husband is responsible for the conduct of his
"Thus, the directors of colleges and schools respond for the
acts of students while they are under their care, and artisans and
impresarios for the acts of their apprentices and dependents in
"But this responsibility will cease if with the exercise of the
authority and care which their respective characters prescribe for
and confer on them they could not prevent the act."
See also Panama Railway Co. v. Bosse, 249 U. S.
, 249 U. S.
Ramirez v. The Panama Railroad Company,
of Justice of Colombia, 1 Gaceta Judicial, No. 22, p. 170 (June 10,