it was not reversed, because the judgment was erroneously entered as against only three of ·the four ,defendants, when it should h!lve been entered, against all. It was reversed"solely upon th.e ground that there no in the opinion. ofthe court to warrant ajudgment even as against the three defendants as to whom the lower court awarded judgment. Subsequently, there was a dismissal of the suit in the state court, and an a.ction has since been brought on the same cause of action against all four of the defendants in the federal court. Upon this state of facts I am of the opinion thf!t the judgment in the state court in favor of D. W. <Marmaduke is a bilr to any further proceeding as against him on the same cause of action. The record of the suit in the sfate court, in myjudgrilent, amply supports the plea of former adjudication. There has been one full and fair trial of the issue, so far a8 he is concerned, in the state court,and a separate judgment entered in his favor in accordance with a rule of practice that is expressly sanctioned by a statute of state. ' No substantial, reason has'been given orean be given why the reversal of the judgment obtained against of the should operate as a reversal of the judgment entered in favor of D.W. Marmad,uke. If the plaintiff desired to contest the judg. ment in favor 'of D. W. Marmaduke, he should have taken an appeal therefrom. Not having done so, that judgment is now a bar to any further proceeding on the same cause of action. There are some decisions in the state of Missouri to the effect that a judgment in a suit at law is a unit, and if reversed as to one defendant is necessarily reversed as to all. Smith v. Rollins, 25 Mo. 408; Dickerson v. Chrisman, 28 Mo. 135; Pdmeroyv: Betts, 31 Mo. 419; Insu1'ance 00. v. Clover, 36 Mo. 392. These decisions; however, have no just application to a case like the present, in 'which two judgments were entered in a suit at law, one in favor of:a certain defendant,and the other against certain defendants, pursuanttoa statute that expressly authorized such practice.
OF NEW YORK "'. TEXAS
& ST. I,. Ry. Co.
((Ji1'ouit Court, E. D. Mis8ouri, E. D. October 10,1887.)
MASTER AND SERVANT-DEFECTIVE MAOHINERy-KNOWLEDGE.
Plaintiff, while assisting as a brakeman in making up a train by the direction or with the cop sent of the yard-master. who bad authority to employ necessary assistants in his department. was thrown violently from the end of the train by the sudden slack of the train caused by the engineer reversing the engine to arrest the speed ofthe train -as it was running down grade, such reversal being rendered necessary because of a defect in a brake which had existed for four or five 1l10nths, and was known to the foreman of the round-house, whose duty it was to repair the defect, but was not known to plaintiff. Held, that plaintiff }Vas entitled to recover for the injuries caused by the fall.
SAME-LU.BILITY FOR NEGLIGENO:E-VOLUNTEER-TRESPASSER.
A person who without pay assists as a brakell1anin making up a railroad train by the direction or with the express permission of a yard-master. who
CENTRAL TRUST CO.
ST. L. RY.
has authority to employ necessary assistants in his department, is not a trespasser on the train. but a servant of the company. and it will be liable to him for an injury resulting from the use of a defective brake. 8.
EQ,UITY-MASTER'S REPORT-FINDING OF FACT.
When a claim preferred by intervening petition against receivers appointed in an equita,ble proceeding is referred to a master for hearing. and is of such. nature as would ordinarily be tried by a jury, the court will not, on exceptions to the master's report, set aside his finding on an issue of fact, unless the testimony returned produces a firm conviction in the mind of the court that the master's finding is erroneous, and that there is not sufficient testimony to sustain it.
On Exceptions to Master's Report. EleneioU8 Smith, for Central Trust Co. Phillip8 & Stewart, for Texas & St. L. Ry. Co. a. G. B. Drummond and Jame8 P. Daw8on, for intervenor. THAYER, J., (orally.) We have examined the report ofthe master on the intervening petition of Edward Kennedy in the case of the Central Trust Company against the Texas & St. Louis Railway Company in Missouri and Arkansas, and we have also examined the exceptions taken to that report. From an examination of the master's report it appears that he has made the following findings of fact: That the intervenor, at the time he sustained the injury complained of, was lawfully on board of a train that wa:;; being operated by the receivers at Birds Point, Missouri, and was serving them in ,the capacity of a brakeman; that the brakes of the engine attached to the train ripon which he was working were out of repair and in a defective condition,-the defect being of such a character that, as the train was backing into the depot yard, on a down grade, the engineer found it necessary to reverse the engine in order to arrest the backward motion of the train, (within the desired space;) that by reason of the reversal ofthe engine, when the slack of the train was taken up, a SUdden shOCK or jerk was communicated to the rear car of the train on which the intervenor was standing, which precipitated him from the end of the car to the track, and led to the loss of one of his limbs. The master has further found that the defect in the brake of the engine had existed for a period of four to five months; that it was known. to the foreman of the round. house, whose duty it was to repair the de-" feet, but that the particular defect in the brake was not known to the intervenor, and he has accordingly recommended an allowance in favor of the intervenor in the sum of $3,500. The report contains several other findings of fact confirmatory of other charges of negligence made in the intervening petition, but it is unnecessary to allude to any other finding, as the findings I have just stated, if they are supported by the testimony, are sufficient to warrant the recommendation of the master. The legal conclusion to be deduced from the findings of the master, as before stated, is that the receivers violated their duty to the intervenor in failing to supply machinery and appliances that were ordinarily safe and suitable for t.he work in hand, which neglect of duty was the proximate cause of the injury sustained. In other words, the findings of the master bring the case clearly within the rule that an employer is liable v.32F.no.7-29
to an eJT,lploye for injnries sustained by reason of. defects in machinery, tools, or appliances which render them unsafe for the particular uses to which they are applied, provided the defect is known to the employer, , or might have been known by the exercise of ordinary care. HCiUgh v.. Railway Co., 100 U. S. 213; Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. Rep. 932. . Turning,now, to the question whether the master's findings were warranted by the evidence, it may be reularked, in the first instance, that there is no reason whatever to doubt the accuracy of the master's finding that the brakes upon the engine were out of repair, and that they had been out of repair for some months, and that the fact was known to the foreman of the round-house, whose duty it was to repair the brake; nor is there any reason to question the aCGuracy of the master's finding that the intervenor was thrown from the train by a sudden shock communicated to the car on which he was standing, by suddenly stopping the motion of the train. There is a conflict of evidence upon the point whether on the occasion bf the injury the engineer reversed his engine to stop the baekward motion of the train, in consequence of the brake being defective, and whether such reversal caused a greater shock than would have been occasioned if the brake had been in order, and the had been stopped in the usual manner by the use of the brake IilIone. In other words, there is a controversy as to whether the defect in the brake was the proximate cause of the il1jury. The master dis(lusses the evidence on that point, and concludes that it is established by II. preponderance of evidence that the engineer reversed the engine on the <occasion of the accident. We have reviewed the evidence on that issue, Rnd while we are not prepared to. say with the master that there is a preponderance of evidence, yet we are dearly of the opinion that there is such a conflict in the testimony on that issue that the court would not be authorized tooverrule the master's finding.· In this connection it is proper to aaythat in this class of cases, which present issues that are ordinarily triable by a jury, we will not set aside the finding of a master on an issue of fact, unless the testimony on which the finding is based is of such character as to produce a firm conviction in our minds that the finding is erroneous. In the present case we have no such conviction after reading the testimony. Objection is also made to that part of the master's report which finds that intervenor at the time of the injury was lawfully on the train, serving the receivers in the capacity of brakeman, The receivers' counsel contends, in! eff that intervenor was a trespasser on the train, and that !ct, the receivers owed him no duty. We have also examined the evidence on that point, and cannot agree with the receivers' counsel. The evidence shows, in our judgment; that the intervenor was either directed by the yard-master to assist him in the capacity of brakeman in making up the train in question, or'that intervenor volunteered to render such assistance, and that the yard-master accepted his services, and gave him permission to so assist. Inasmuch as the yard-master was shown to have authority to employ necessary assistants in his department, it makes no
difference in our esUination whether intervenor was a mere volunteer serving with the expresl3 permission ..of the yard-mastE)f.· or whether he was expressly ordered to assist in the work undertaken. In either event he was not a trespasser on the train. He stood in the relation of a servant of the receivers, and they owed him the same duty that they owed to any other employe. Whart. Neg. § 201, and cases cited. The result is that the exceptions to the master's report will be over· rUled, and the report will be confirmed.
SAME 'V. DAVIS
(Oirouit Court, N.D. Oalifornia. August 22, 1887.)
The land grant to the Southern Pacific Railroad Company of California under the act of congress of March 3, 1871, incorporating the Texas PacifiC Railroad Company, is valid; and a road having been completed from Tehachapi pass, along the line provided for, to the Colorado river, as required by the act. the title to the land)! granted has fully vested in the Southern Pacific Railroad Oompany of California. 11. SAME. The twenty-third section of said act (16 St. 579) grants to the Southern Pacific Railroad Company of California "the same rights, grants, and privileges as were granted to the same company by the act of July 27, 1866, incorporating the Atlantic & Pacific Railroad Company." And those "rights, grants, and privileges" were the same, along its authorized line, as were granted to the Atlantic & Pacific Railroad Company. 14 St. 299, § 18. II. SAME-AMENDING ARTlCLES OF INCORPORATION. The original articles of association of the Southern Pacific Railroad Company of California did not specify, as one of the objects of the incorporation, the construction of a line of railroad from Tehachapi pass to the Colorado river, in the south-eastern part of the state; but, at the time of the passage of the act of congress of 1871, incorporating the Texas Pacific Railroad Company, there was in force the act of the legislature of California of March 1, 1870, authorizing any corporation then eXisting, or thereafter to be formed, to amend its articles of association, by making and filing amended articles in the same office where the originals were filed; also, a statute authorizing railroad corporations to consolidate with each other. And the articles of association of said company were amended immediately after the passage of the Texas Pacific a('t, so as to embrace the road therein provided for in the objects of the corporation. and the company consolidated with other companies in pursuance of the statute. The road constructed as provided for in the Texas Pacific act was thereafter completed in accordance with the provisions of the act. Held, that the proceedings were valid, and the road afterwards built was constructed in pursuance both of the laws of California and of the acts of congress, and that the title to the lands granted vested in the Southern Pacific Railroad Company of California, as it existed after the amendment of its articles of association, and its consolidation with othel roads. 4. SAME-EFFECT OF FILING MAP OF GENERAL LOCATION. The filing of the map of general location of the line of the road, by the Southern Pacific Railroad Company of California, in pursuance of the act of con2Tess, inured to the benefit of the Southern Pacific Railroad Company of 1.
PUBLIC LANDS-RAILROAD GRANTS-SOU7HERN PACIFlC RAlI.UOAD COMPANY.