FEDERAt REPORTER, vol. 3 fl. ' '
his wife before her death. Stuart v;,' Telegraph CO., 66 Tex. 580 et seq; Telegraph Co. v. Broe8che, 10 S. W;'Rep. 736. Under the facts of this case no exernplary or punitive' are recoverable. It is my duty to say to you, in reference to the question of damages, that great caution oughttobeobserved in the trial of cases like this, as it will be so easy and natural'to confound the corroding grief occasioned by the losllo(a wife with the disappointment and mental anguish occasioned by the fault or negligence of the company; for it is only the latter for which a recovery may be had. So Relle v. Telegraph Co., 55 Tex. 313, 314. Under the instructions and the evidence, you will render such a verdict, gentlemen, as you may deem right and proper.
SKINNF.R V. ATCHISO,N,
T. & S. F. R. Co.
June 20, 1889.)
CO,rcuit Oourt, N.
CARRIERS OF PARSENGERS-ACCIDENTs-RrSKS ASSUMED.
A passenger on a railway train, who, while ascending the steps of a car on the invitation f the railway company's agent, is injured by the fall of a servant of the company against her, the fall being caused by accidentally slipping while sta.:lding on the rails of the platforms of two cars, eng-aged in the performance of his duty, cannot recover from tlJe company therefor, as there is no negligence, and the risk of such an accident is assumed lJy the passenger.
At Law. On motion to direct verdict. On October 13, 1887, plaintiff, a lady 45 years of age, was a passenger over the defendant's railroad. traveling from Kansas City to Wellington, Kan. At Newton, an intermediate station, she was obHged to alight and change cars. Being notified by the station agent that the train for Wellington was ready, she started to take her place in the passenger coach. Her testimony was that as she ascended the steps she saw a brakeman suddenly climb the rails of the car platform, as if to adjust the bell-rop , and that almost simultaneously with his ascending the rails he fell backward upon her, crushing her left hand with his foot, and inflicting other serious injuries. A witness for plaintiff testified that he preceded the plaintiff up the steps, and that the brakeman was standing upon the rails, adjusting the bell-rope, when the witness began to ascend the steps. 'I his witness' attention was first attracted by a cry from the plaintiff, and, turning quickly around, he saw the brakeman in the act of falling. Two other witnesses for the plaintiff saw the brakeman about the instant he came in contact with the plaintiff. One of them had not noticed the brakeman before, the other testifying that he saw the brakeman suddenly appear, (but could not tell whence,) and quickly climb the rails in the manner tesWied to by the plaintilf. At the close of the plaintiff's case defendant moved the court to exclude the evidence. This motion was overruled pro forma, and the defendant in trod ueed the evidence of the
iv, ATCHISON, T.
& S. F.
brakeman, who testified that in the course of his duty, and in the usual and ordinary method, he was adjusting the bell-rope while standing, not upon the rail at the outer edge of the platform, as plaintiff's witnesses testified, but upon the two rails attached to the end of the body of the car, one on each side of the door. While in this position, his legs spanhingthe opening of the door, he was jostled or run into by some one from within the car; his right foot was pushed off t:rom the rail, and in the effort to regain his balance he fell upon the plaintiff. At the conclusion of this evidence defendant renewed the motion for the court to direct a verdict for the defendant. Moses &- Neunnan and Prank ]VC8, for plaintiff. Williams, Holt&- Wheeler, for defendant.
JENKINS, J., (orally.) In of thif': motion the courtis obliged to consider the evidence in the light that is most tilVorable to the plaintiff, ahd give to the plaintiff the benefit of all the inferences from the facts which the jury would have a right to draw. The facts are within small compass. The plaintiff was a passenger, and was entitled to the protectiunof a passenger from the defendant, and was entitled from the defendant te the highest degree of practical skill and care to protect her from far as the evidence discloses, everything connected with the train Wa,- in perfect order. She was ascending the steps of the car, lawfully, upon invitation from the official who supervised the station where the train was standing, and upon reaching the second step she was injured by the falling of this brakeman, who, in the discharge of his duty, had ascended the rail for the purpose of coupling the bellrope. The court must assume that the version which the plaintiff gives of that transaction is the correct one, and that the brakeman had one foot upon the forward rail of one car and the other foot upon the rear rail of the other car, stretched across. That seems to be the fact that the plaintiff's testimony tends to establish. The court must also assume that while in the discharge of that duty, so situated, he accidentally slipped, fell, and injured the plaintiff. The declaration is founded on the careless and negligent manner in which the brakeman his duty, and the only two q aestions in thp case to be determined upon this motion are-First, whether the company Jailed to discharge the duty which it owed to the plaintiff as a passenger; and, second, whether the brakeman was negligent in the discharge of the duty committed to his care. The defendant owed, as I have said, care and protection to the plaintiff,-such care and protection as, in the ordinary management and operation of trains, the highest degree of skill and care could exercise properly to protect her. I have carefully considered and reflected upon the evidence and upon the duty which this defendant owed, and the court is unable to see wherein the negligence of the defendant consisted. Ifthe iacts occurred as related by the brakeman, he was discharging his duty in the ordinary, usual, and customary mode, and his foot was pushed off by a passenger or some one from the interior of the car, If that were so, then he was simply the medium by which injury was inflicted upon
th.lil plaintiff through the act of someone else, and there would be no more liaQility upon the part of the company than if this hl:td rushe(j. qut upon the platfoJ:m against the plaintiff,.and thrown her down, inwhioh case, I take it, could be no question of liability on the of the company. If,on the other hand, standing upon the tw.o rails, as the plaintiff's witnesses have testified, l;1e accidentally slipped and fell against the plaintiff, there is then no negligence proven either upon the part of the company or upon the part of ,the brakeman. It is one of tllOse accidents that will happen. It is unusual, and of which every traveler assumes the risk when it has not been produced by the act of the company, or the omission of its duty, or by the ne/l;ligent act of its agents. The court has to discover, in' this case no ground of legal liability upon the part of the defendant, and, however much it regrets.the injury which the:plaintiff has suffered, it couldnot discharge its duty under the law by permitting the case to go, to the jury, because should there be a verdict for the. plaintiff it would be the duty of the court to set it aside. Plaintiff moved for leave to .take a nonsuit, which was allowed.
Collector of Customs.
April 10, 1889.)
(Oircuit Oourt, S. D. New York.
CUSTOMS DUTIES-AcTION '1'0 HECOVER.
The provision of Schedule K of the tariff act of March 3, 1883. for "all manufactures of wool of every description made wholly or in part of wool." (Hey!. Dig. par. 362,) covers all manufactures of wool whether they were made froUl wool by one step or by two, and covers all articles manufactured of wool which are not elsewhere provided for in the schedule.
2. SAME-CONSTRUC'lION OF STATUTE. "'W orsted coatings." or "cotton backed worsteds. " being goods of which the face is of worsted and the back of cotton warp and shoddy filling. are dutiable as "manufactures of wool of every description composed wholly 01' in part of wool," under the provision therefor in Schedule K of the tariff act of March 3, 1883, (Heyt Dig. par. 362,) and not as manufactnres of every description composed wholly or in part of worsted, (except such as are composed in part of wool,) under the succeeding provision of the same schedule in the act, (Heyl. Dig. par. 363.)
At Law. This was an action against a former collector of the port of New York to recover duties alleged to have been exacted in excess of the lawful rate on certain goods known in trade as "worsted coatings" or "cotton backed worsteds." The evidence showed that these goods had a face of worsted and a back of cotton warp and shoddy filling; that shoddy was a substance made by tearing into shreds woolen or worsted rags; and that the goods were worth less than 80 cents per pound. The goods had been returned by the appraiser as "manufactures of wool, worsted, and cot-