ml'ndate, leav.ing it to include the whole bill, I'S the 104 U. S. 356. But, however that maybe, the decree which"this court! made was full arid final, and dis.Whole case. If there was any error in it, the error could J>p.ly,becorl'ected ,at tbat. (tenn, or by proceedings for· review under the -rules, 0.1' on appeal. Bronson v. Schulten, 104 U. S. 410; Ph1llipav. Negley, 117JJIS.665, 6 Sup. Ct. ,Rep. 90l. This ,court is withoutpower to open the case now. Motion denied.
, .' ;,1'
(On intervention of
(Circuit Oourt, llJ. D. Louisiana. January 22, 1887.)
RAILROAD COMPANIES-NEGLrGENd:s:=-:-DAMAGE ,FROM FIRE,
Where the evidence shows that the fire complained of originated from sparks or otJ;ler fire from,a loc:omotive of ,the company, in a manner so liS to make It reasonably probable and certain enough to raise the presump'tion of ignorance in the operation of said engine, the defendant company wIll be held responsible for the damages resulting from the fire.
In Equity., ,On excepti<?tls to J. Jr., for.intervenor. W. W. Howe and S. S. PrMtiss, for receivers.
PARDEE, J. :Exceptionsarefiled to the. master's report, to the effect that the facts do not establish a presumption of negligence against the receivers, nor a legal basis for a recovery in favor of intervenor. An examination of the evidence shows that all ,the circumstances point to the fact that the fire frOl;n from engine 619 of the railway, not so strongly as to .t::rlitke it certain, but so as to make it reasonably probable, and certain enough to raise thepresumptioll of negli,gence: in thEJ!6pera!tion 6fthesaid engine. This showing is only met roy evidence shoWing that on the morning of the 'day' the ,fire occurred, J.uly 31,1'886; 'lind four days afterwardS,on August 4,1886, theengine 619 wits examii:Ied at Marshall shops, and then the condition of the stackthe dumper was good. The fireoccUtredabout 190 Marshall shops, and at 12 hours after first miles west amination, !and3l days before the second. And after the first exami.. nation,' and' before the fil.'e, the engine must have traveled over that distance of 190 miles. At any: time betw'eeu'the twoexamiriations,' while the, 6ngitie l was'inuse, the or dumper maybave' been shaken iht0bad 'ordel'; Whether the engine was examinedll.t'any of the shops west'of does not appear.' 1'he master ooD.clUdesthat the en" gineer so the engirie,l not' ;dJfective in its appliances, as to
'. ',;-:.'j ' , '
'. ;JReported byJosephP. Hornor, Esq;, 'of1he New- Orleans bar;' ,
MISS01:jRI PAC, RY, CO. V. TEXAS & P. RY. CO. ,
Mrnmunicate fire to the intervenor's premises; but there is no evidence of a.nd I take the master's mean that the fire was communicated by the engine, and that the evidence does not exculpate the agents of 't he receivers from negligence, If the receivers had tlhown that the engine was supplied with the best appliances for the prevention' ofsparksand the spread of fire, and' that at the time, or im,me.:. after, appliq.llces were ill it,wQuld be difficult to hold: them liable in: this case.· As the proofis, however, I am constrained to confirm the special master's report. '" be ovar'ruled, and the report be connrlH-ed·
.a', ,', '
MIsSOURI PAC. Ry. CO.
& P. Ry. Co.
(Oircuit Oourt;E. -D. LouiBiana.
:MASTER AND SERVANT-NEGLIGENCE-FELLOW·SERVANT.
That the common master is not liable to a servant for injuries caused by the , neglig.ence of a is a rule recognized in the United States courts, '(H9'itgkiy; Raiffl!ulI 00., lOO'Uo' S; a brakeman of a railroad train cannm reoover of the company fQr injuries lWouBed by . · ., ,. I
; Master's Report.' , ' .' " praying for compensation for , Petiti911 orE. 'M. persdrid injuries. JoTvn H. Kennard, Ji'., 'for petitioner. W. and S. S. PrentiSs, forreceivere. . _.. ,it
PAIiDEE, J. The evidence in the case shows that, the petiti<:mer,a brakeman, was. inj uredby the negligence of theengineer,hrs oW'll negligence contributing thereto; while they were both employed 011 the same freight 'train. 'The master's report is practically to the same' purPGrt, but the 'llUiii:ltarseems to find that the petitioner?snegligencewas n'litiga:ted to slight negligence for which he was not responsible,because of his reason.; able faith that the engineer would not he guilty of any negligence. The evidence shows clearly that, but for the ,primary negligence of the petitioner, he would not have been inj ured ,although the engineer bad started his tntib as he did without proper signal. ItaIso seems clear in this case that the" brakeman and the engineerwere feliow.se1"Vants; and, as the general mIa' exempting the common master from liabilityto a servant for injuries,ca,tised by the negligence of a fellow-servant is recognized· by the courtsofthe United State'5;(see,Houghv. Railway Co., 100 U. 8. ,213,) the notreco-irer from 'the receivers in this case;, unless in sorne' ws'y they ron he shown to be in fault. A ca.refulexamination of the evidential and of the mnster's report, shows no fault of commission noromissioil on the part of the teceivers. An order Will be entered sustaihing the exceptions to the special. master's reporti and dismissing the petition of saidE. M. Pierpont.: