CARPENTER 'V. MEXICl\N . NAT. R.CO.
CARPENTER V.MEXICAN NAT.
\ Oirplit Oourt,
Texas, San Anton(o Di-o. :May 17,1889.)
MASTEltANP SERVANT-FEUO",-SEltVANTS-BRAKEMAN AND CAR, INSPECTOR.
A car,inspector is not a fello'Y-servaJ;lt with Ii brakeman, but is a representa· tive of the employer. . . ". ;, '
2. SAME-RISJ>,S 'OF EMPLOYMENT-LATENT DEFECTS.
While 'a brakeman cannot' recover for injuries cauB1ld by defective brakes if he ·had, or by the exercise of reasonable prodence might havehad,kllOwl· edge of such defects, he is not bound to Look. for latent or hidden.
OF FOR PERSONAL INJURIES.
In estimating damages for 'personal iiljuries to cansed .by defective ,appliances, the jury may eousid,e:f(l) tl:\e v!tJue qf the time lost during the period of disability; (2) fair cQi1lpensatiim fortbe mental and physical suffering caused by the injury; '(3) the probable effect of the injnTY upon plaintiff's future health, aqd ability to earn pursue the course . of life for which he was fitted. At Law. Action by W. J. Carpenter for danlnges for personal injl;lries. S, G. Newton, W. Showalter, and C. C. Pierce, for plaintiff. Thomas, W. Dodd, for defendant. "
MAXEY;, J., (charging ,jury.) The plaiJ,ltiff, W. J. Carpenter, brings this suit to recover damages of the defendant, the Mexican National Railroad Company, and his petition alleges that at the time he received the injuries complained of he was employed in the service of the defendant as a brakernan, and was then performing his usual duties as such employe; that his injuries resulted from the negligence ofdefendant in failing to furnish the cars upon which he was working with proper and safe brakes and machinery for stopping the train. The accident occurred at or near a place called" El Puerto," in the republic of Mexico, on the 30th of April, 1888. To inform you more accurately of the plaintiff's cause of action, I will read to you the following extracts from his peti. tion: "That when said train upon which said defendant was employed arrived at said place called' EI Puerto,' and began to descend said down grade, plaintiff and two other employes set all the brakes upon all the cars in said train with great care, and as rapidly as the same could be done, but that said brakes would not work, and were not fit for the purpose for which they were used, and could not be made to press SUfficiently upon the car-wheels to check the motion of the train; that the chains and all the machinery of the said brakes were defective in construction, and not in good and safe condition, and were not fit and adapted for the purposes for which they were used; that beoause said machinery of said brakes would not work, said train of cars upon which plaintiff was employed, upon entering upon said down grade, began to move down the said grade at a terrific and dangerous rate of speed, and that there were no means to check the said train, and that said train becameunmanageable; that plaintiff and his fellow-brakeman did everything that skillful and prudent men in such affairs could do to check and control said train, and to preserve thE'ir own lives and limbs; that, while said train was so moving at
such terrific rate of speed, plaintiff was on top of one of said cars in the performance of his duties!as brakeman; and that the immense strain caused by the rapid motion broke a journal of one of the cars, and thereupon the plaintiff to the ground with such force that the car jumped the track and bones of his left leg. fronl the knee to the ankie, were broken and crushed. and the flesh thereof torn and mangled, and that he waB otherwise greatly injured and hurt; * * * that if said cars ripori said freight train had had suitable brakes and machinery fOl" stopping ll.ndslowing, the sai'd train could have been easily stopped, and said injuries to plaintiff prevented; that said defendant, in placing cars with defecti,ye bJ;'akes and machinery for stopping or slowing them in the train upon which plaintiff was so employed, was guilty of great negligence, which was the cause of plaintiff's said injuries." The defendant (1) By general denial,-that is, it denies all the allegations in petition,-which devolves upon the plaintiff the duty of proving ,his cause of action as he has alleged it. (2) That the injuries complained of by plaintiff were caused by the breaking of a journal of one of the cars forming the train upon which plaintiff was employed; that the breaking of the journal aforesaid was one of those unforeseen accidents against which n9 foresight could guard or prevent; and that the plaintiff's injuries, therefore, were one of the risks assumed by him in accepting employrnent in defendant's service, for which no recovery can be had. (3) Defendant further denies liability on the following grounds, set out in its answer: "That if plaintiff's injury was in any manner or remotely attributable to the lack of a sufficient number of brakes to keep the train under cantrall-which is specially denied,such failure was the fault and negligence of the car inspector, a fellowservant of plaintiff, and whose duty it was to inspect carefully all cars, car-wheels; brakes, etc., before departure of trains; and if he failed in that particular to discharge his duty, it was the failure of a fellow-servant, and for which plaintiff ought not to recover; and of this the defendant puts itself upon the country." (4) Defendant further interposes the defense of contributive negligence on the part of plaintiff and his fellowbrakeman, in bar of this action. You observe that the plaintiff predicates his right to recover on the ground that the brakes on the cars composing the train were defective, unsafe, and wholly insufficient to enable the employes (including himself, the conductor Wiggins, and 'the brakeman Sullivan) to control the train in its descent, of the grade at EI Puerto. To entitle him to a recoveryhe prove his cau9.eof action as alleged,-that is to say, the testimony must satisfy you that the brakes were defective, unsafe, and insufficient to enable the employes to keep the train under 13ontrol; that the'defendant knew, or by the exercise of ordinary and reasonable care ought to have known, oUhe unsafe and defective condition of the brakes; and that the plaintiff's irijutiesresultedfrom the use of such defective appliances. . If his injuries some other cause, or from a risk to the he w:lsimgaged,-as the purely accidental breaking of a jouroalofacar, disconnected from the use of defective brakes,-he could 'not, in this event, recover against the defendant; for it is a rule of law that, "in general, when a servant, in the ex-
MEXICAN NAT. R.
ecution of his mastet's business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. The reason most generally assigned for this rule is that the servant, when he engages in the employment, does so in view of all the incidental hazards, and that he and his employer, when making their negotiations, fixing the terms, and agreeing upon the compensation that shall be paid to him', must have contemplated these as having an important bea,ring upon theirstipulation. As the servant then knows that he will be exposed to the incidental risks, 'he must be su pposed to have contracted that, as between himself and the master, he would run this risk.'" Tuttle v. Railway Go.; 122 U. S. 195, 196, 7 Sup. Ct. Rep. 1166, 1168. But you are instructed it is also an equally well-recognized principle" thai it is the duty of the employer * * * to furnish sufficient and safe rnaterials, machinery, or other means by which it [the service] is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his se.rvants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising * * * from defective machinery or other instruments with which he is to work. His contract implies ,that in regard to these matters his employer will make adequate provision that no danger shall ensue to him." Railroad Co. v. Herbert, 116 U. S. 647, 648, 6 Sup. Ct. Rep. 590. The plaintiff, therefore, when he entered the service of defendant, did not, by virtue of his contract of employment, assume any risk incidental to the use of defective appliances or machinery, of which defects he was ignorant; and it was the duty of the defendant, in employing the plaintiff as a brakeman, to provide its cars with safe and suitable brakes and appliances to be used by him. Whether the cars upon which plaintiff was working at the time he was hurt were provided with safe and sufficient brakes is a question of fact which you must determine for yourselves from a consideration of the testimony. The mere fact that the defendant had in its employment a competent car inspector would not, of itself, exonerate it from liability if the brakes on the cars were defective in construction, or not in proper repair; for he was the representative of the defendant, and not a fellow-servant of plaintiff in the sense contended by the defendant's counsel; and, if he failed to exercise due and reasonable care in inspecting the brakes of the cars, and keeping them in proper repair, then for any negligence on his part in that respect, from which injury resulted to plaintiff, the defendant would be liable. 116 U. S. 648, 652, 6 Sup. Ct. Rep. 593--,.595. In this immediate connection your attention is directed to another principle of law touching the duty of the plaintiff. He was bound to exercise reasonable and ordinary care to avoid injuries to himself; and if the brakes on the cars, at the time he was hurt, were defective,and he knew, or might have known by ordinary attention, their condition, thus exposed himself to danger,-in other words, using the language
; :. >
did not use his sensesasmengenerally use harm,-be cannot complain, of the injury which he 655, 6 Sup. Ct. But tQe principle of law as te> the dtitY,ofpla,intiff u.nder such circumstances is subject to the Wat he was not required to inspect the brakes to ascertain whether or,pottperewere latent or hidden imperfections or defects in or ab'out therp there ,,:,ere any defecw at all) which rendered their use more hazardous. .That Wll,S of the defendant, the general principle oflaw being that, tAe def,ects are such as to be obvious, open to common giving attention to the duties of t\le occasion, the observation, to ilmployehas the right to the employer has performed his duty in respect to the implements and machinery furnished.". Raihvay Co. v. Bradford,,66Tex. 735, '2: S.W. Rep. 595. Bearing in mind the foregoing you 'will inqllire whether the bmkes on the cars at the time plaintiff recei'ved his injqries were sufficient ,n number, aild prop;erly adapted to the plJ'rpose .fo'r which they were used. Were they suf,ficiEmtly numerous, and in proper' condition of repair, to enable the persons using them to properly manage the train, and keep it under control? If so, then it will be your duty to return a verdict in favor of defendant. If, however, the brakes were unsafe or defective, and the defendant knew of theirdefective and' unsafe condition, or could have discovered it'by the exercise of reasoriable care' and diligenqe, and the plaintiff was ignorant of the defects, and could not have ascertained their condition by the exercise of ordinary care and caution; and if the injuries of which he complains resulted from such unsafe or defective condition of the is to say, if, as c1aillled by the plaintiff, the journal testified to broke in consequence of defective or unsafe condition of the brakes, and he was thereby injured,-then you will return a verdict in favor of the plaintiff for such amount of actual damages as will compensate him for the injuries hehas sustained. In making your estimate of such damages you are authorized to consider (1) the value of the time lost by the plaintiff during the period in which he was disabled, from his injuries, to work and labor, taking into consideration the nature of his business and the value of his services in conducting the same; (2) fair compensation for the mental and physical suffering caused by the injury; (3) the probable effect of the injury in future upon his health, and the use of his injured foot and leg, and his ability to labor and attend to his affairs, and, generally, any reduction of his power and capacity to earn money and pursue the course of life which he might otherwise have done. Ra.ilroad Co. v. Randall, 50 Tex. 261. The object of the law in cases like the present is simply to compensate the injured party for the injuries he has sustained; nothing more. It therefore follows, and you are instructed, that the plaintiff is not entitled to recover -exemplary or punitive damages. You are the exclusive judges of the credibilHy of the witnesses, and -ofthe weight to be attached to their testimony; and in civil suits, such .as the present one, you may predicate your finding upon a preponder.ance of evidence. You have just heard the testimony, and are familiar
of the theirs to
HAYES fl. SHOEMAKER.
with all the facts in the case; and I will not attempt to review them. It is now your duty to render such a verdict as will be just and righti):l view of the testimony and the law as embodied in these instructions.
HAYES V. SHOEMAKER.
(Oircu,it Oourt,N. D. New York. July 23, 1889.)
NATIONAL BANKS-INSOLVENCY-8TOCKHOLDERS-INCOMPLETE TRANSFER.
Where a sharebolder of a national bank mal,es a bona·fide sale of his stock, and goes with tbe purchaser to the ban k. indorses the certificate, and delivers it to the cashier of the bank, with directions to make. the transfer on the books, be bas done all that is incumbent upon him to discharge his liability, and he is not liable. though the cashier failed to make the transfer, upon the subsequent suspension of the bank. for an assessment made by the comptroller of the currency, under Rev. 81. U. 8. \3 5101, tc)'pay the bank:s debts.
At Law. Trial by the court. John N. Beckley, for plaintiff. H. V. Howland, for defendant. COXE, J. This action is by Frank 1\1. Hayes, as receiver of the First National Bank of Auburn, N. Y., to recover upon an assessment made by the comptroller of the currency, under section 51.51 of the Revised Statutes, against the defendant as a shareholder of the bank. The facts are undisputed. On the 16th of March, 1885, 41 shares of stock were transferred by Michael Shoemaker to the defendant, and havesin'ce stood in defendant's name on the books of the bank. On the 31st of Auguf"t, 1886, the defendant, through his attorney, H. W. Taylor, sold this stock in good faith to Clinton T. Backus. Taylor was appointed attorney, by a written instrument, and was invested with full authority to sell the stock, and to perform any act with reference to the transfer thereofthat the defendant could perform. On the day in question Taylor went to the bank to receive the purchase money , and con1plete the transaction. He met Backus there. Charles O'Brien, the cashier of the bank, waS present. O'Brien was advised of the sale, shown the certificate and power of attorney, and informed by Taylor and Backus that they had come, to make a legal transfer of the stock, and to do all that was necessary to accomplish this result. The cashier directed Taylor to indorse the certificate, and deliver it to him with the power of attornE;Y, stating that nothing further was required of either Taylor or Backus. Taylor did as requested. The cashier was authorized and 'directed to make the proper entries in the Books of the bank, and he promised so to do. The defendant supposed that the stock had been propei-ly transferred, and never was iilformed to the 'contrary until just prior to the commencement of this action. It is argued by the plaintifl'that,notwithstanciing this sale,-concedeJly a bona fide one as· between the parties,-the de-