V. TEXAS: PAC.
(Oircuit Oourt, E. D. Louisiana. February 5, 1890.)
1. IMPUTJ!ID NEGLIGENCE-DRIVER 'AND
IN PUBLIC CARRIAGE.
Ina'll action for damages for injuriesc&used by the collision of a railway train with II carriage occupied J:>y intervenor'.8-Wife, it alJpeared that by reason of the accident her left shoulder was broken, causing her great pain for several weeks i that as a result tbe arm was' practically 'paralyzed, and permanently disabled, ana often, painful; that sbe was a dress-maker by trade, and· contributed largely to the . support of the family; and that her ability to so contribute was impaired by her injurIes. Held, that a verdict of 34,500 was not excessive.
In EqUity. On exceptions to the master's report. Intervention of Constantine Andreola. Rice &- Armstrong, for intervenor. F. H. Prendergast and Howe &- Prentias, for defendant. On the 22d'day of March, 1887, the intervenor's wife, while occupying a public carriage, hired for the occasion, was injured' through a collision with said carriage and one. of the trains operated by the receivers. in this cause, at a public crossing in the town of Marshall, in the state of Texas. . On the 9th pf,August, 1887, the intervenor instituted a suit in the district court.of Harrison county, Tex., against the repeivel's, to recover damages for slwh injuries. Tlle receivers appeared, and demurred to the jurisdiction of the court,and at the same time. pleaded a genernl denial,and<lontributory negligen.ce. On the trial o,ftbecase, in August,1888, the jury verdict as "We, the jury , find for the plaintiff actual damages, including all ex'pensesitothe total amount of four five hundred dollars." Upon which verdIct the court rendered thefollowjng judgment: "It is therefore considered. ordered, and adjudged by the comt that the plaintiff do have and recover of the defendlliUts, John C.:Brownand Lionel A. Sheldon,in"their capacitIes ,as rllceiversof the Texas & Pacific Railway. the sum of four.thousand five hundred dollarll, ($4,500.00,) the finding of the jury aforesaid; with all the costs of tlliil suit ; that this jUdgment be tified to thl! bonorable circuit cOilrt of the 'United States for the eastern district of Louisiana, at New Orleans, in which said court said receivers were appointed, and under the orders of which said Brown is now, and has been. operating said road, to be paid, under the orders of said court, out of the earnings of said railroad; and it is further ordered, adjudged,and considered by the court that this judgment shall lie a lien upon the earnings of said road in the hands of said receiver, arising from the operation of said road in Texas, and on all machinery purchased by the receivers under said earnings, and on the improvements and betterments placed upon said railway in Texas, out of the earnings of said rail way. "
MISSOURI, PAO. RY. 00. fl. TEXAS PAC., RY. CO.
lly intervention, the said judgment has been presented in this case, with a prayer to this court to recognize the same, and to tender such orders and assistance as may be equitable, etc. The master reported in favor of intervenor, and to his report defendant has excepted. The questions presented as to the conclusiveness of the judgment the same as those in the Case oj Su.llivan, ante, 311, (just decided;) and, for the reasons given in the opinion in that case, will be ruled the same way. The ,evidence shows that the injury to the intervenor's wife was caused by the nep;ligence of the servants and employes of the receivers, inthat they started the train, near a public crossing, without giving any ,signal of such intention, and did so while a line of carriages was crossing the track; and further, in this, that while the train was standing thereby, ready to cross, an employe of the receivers gave notice to the carriage drivers that they could cross over in safety. There is some evidence to show that the driver of the carriage containing the intervenor's wife and others was also guilty of negligence in driving, onto the track without sufficient care. For the purposes of this case, such negligence may be conceded, with the finding that it contributed to the injury resulting to the intervenor's wife. It is contended in the exceptions and in argument that such negligence on the part of the driver is to be imputed to the party injured, and that the intervenor cannot recover because of such contributory negligence; citing 'l'horogood v. Bryan, 8 C. B. 115; Whit. Smith, Neg. 405; Patt. Ry. Ace. Law, § 86; Beach, Contrib. Neg. §§ 34-36., On this point there are no decisions cited as to the jurisprudence of Texas. In Littlev. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391, on a state of facts differing in no important particular from the facts pf the present case, the supreme court of the United States, after reviewing the whole subject aod the leading cases, dIsapproved the leading -case' of 'l'horogood v. Bryan, 8upra, and held that the negligence of the driver of a public carriage is not to be imputed to the passenger, who, in the management of the conveyance, exercises no control over the move.ments of the vehicle. This decision is conclusive of this case. It is clear, therefore, that the intervenor is entitled to recover from the receiver damages for the injuriel:l his wife sustained by the collision aforeAccording to the testimony of the said. Those injuries were. doctor who attended, "there was a fractured clavicle near the left shoulder joint," and there were bruise!) in her side, and she complained of great pain. She was under his treatment three weeks, when she went to Shreveport. 'Two or three days after her accident she was examined by Dr. Clay, Who, found her suffering apparently great pain. The injury then appeared to be located on the front and lateral aspect of the chest, including ,the left shou1der joint and collar-bone; the collar-bone being evidently broken. At this time her suffering was so excruciating that it was.impossible to make much examination. Afterwards, the first week in Auglist, (probably 1888,) the same physician examined her ,again.. She was from stiffness inthfJ left shoulder, which pal;l atrophi,eq from Don-use. The use of thib'joint
tb" 'Sbre'Veport,.'she ,treatedbyrDriD. her l'eturn;about three weeks after the accident: She bad Ii 'dressing on for a Tractured clavicle; suffered very much, anodynes, to relieve the pains and On the trial, eighteen months afterwardst'he testified in very good health, and sound physiNI1Iy'; prior to her That she had' suffered with arm more or less ever since the reception of the injury. Thattheann injured is practiciaq'lypal'alyzed, and that she cannot close some 'of the fingers on' 'herhaiId, on account of the injury to nerves of thearn'i; She cannot raise the afmover the head without resistance and pain. " That since her injuries she has Ruffered, and' was then ftom spinal irritation.' Her ltrm was much disabled, and interfered rriuchwith her duties as housekeeper, arid in her calling as dress-maker. That her arm was wasted somewhat. Whether it was the result of the injury to the nerve direct, <n"dueto usage, witness could not say. In his opinion, ,the injuries will disable her permanently. Eighteen morithsafter, MrS. Aridreola herself testified:
H. Billin, ,who
":Lean use mytlHlmll and of the left but can't u,se the of it,he same hanc]., I,pannot raise my to a level without ¥s\stance." It nostrengtb in it. I could not lift even a saucer with my left hand and My chief pain is now in my shoulder-blade, next to the spinal column. If I turn over onli1y left side in my sleap, I quickly awake, and have to tltrnback. on account ,of pain. In oold weather, the broken shoulder pains mea great deal, as j f it had neuralgia. Since the inJury, I have n,ot,had any health.--:-sufl'ering,from nervousness,-and am going down all the lcan,not now, by r!l3S01l of my injuries, cut and fit, auli carry on my business. ,1 cannot attend to my household, affairs at all. I am forty years of age, and have four children liVing with me at home. I cannot do now, except what I can do with one arm. The pain between my shoulder-blades, near the spinal column. hurts me, and makes it painful for me to breathe. I was not able to resume my dress-making business until a year after the accident. I have had Lo get an extra hand in my business, at twenty dollars a month. My husband is a poor man, and could not support ue without as,sistance."
This, evidence with regard toMrs. Andreola's injuries is practically undisputed. It, isa fair 'inference, from the Whole of the testimony, that the intervenor's wife \'Va,s the6hief bread-winner of the family" and that, by the injuryreceivetlinthe collision she ,has been permanently crippled. She has suffered, ,and will suffer, much pain; and her capacity' to aid in supporting her family is very seriously impaired. 'The amount allowed by the jury, and recommended on this intervention by the master, is $4,500. It does not appear to beexcllSsive. , 'The order will be eI;ltered in the case: . This cause came on 'to ,be further heard upon, the intervention of Constantine Andreola, the master's rep6rt' thereon,' a.nd exceptions thereto, and was argued;. Whereupon it is ,ordered, adjUdged, and decreed that the intervenor, Constantine Andreola., do have and recover from the receiver in this cause the sum of $4,500, with interest at 8 per cent. per annum from the 30th of
t; 1889, and the Costs of this intervention. g is further ordered t adjudged, and decreed that the defendant, th,e Texas & Pacific Railw/iloY Company, do pay and satisfy the said judgment under the order herein this cal,lse,restoring the possession of the railway proptofore
PAC. RY.Co. ".TEXAS & P.Ry. Co., (BLAESSER, In· tervenor.)
(OircuU Oourt, E. D. LO'WI.8iatna. January 7.1800.)
BAILBOA.]' CoMPANIEB-RECElVERB-tNJURIES TO EMPLOYE-WA.GES DURING RECOVERY.
Under the rule in Freundlich's Gase,38 Fed. Rep. 701, a receiver of a railroad company ordered to pay wages to an employe of the road during recovery from injuries received in the line of his duty, and without fault.
In Equity. On exceptions tomaster's report. Rouse k Grant, for intervenol'. Hawe k Prentiss, for receiver. PARDEE,;1. The interven(>r claims damages for personal injuriesre'byliim from the f/ilolling of a sectioD."house of the defendant: for the pain tlndsnffering occasioned thereby; .for the amount of his wages during the time he was unable to work; and the further sum of $206:10, for the loss of certain of his personal effects by the loss of said house,and charges that the section-house Was 014, rotten, and in a dangeJ;ous condition; that of this the receiver was repeatedly and that the receiver promised to have the house properly repaired, but failel! to have it done; that the house fell upon intervenor during a storm, 'the 19, 1888, causing the injuries for which he aska damnjghto,f ages. ":'J,'he master finds: the section-pause was safe. and sufficient for its purpose. and , discharged the degree of care required bylaw of the railway company; second; that the receiver was not notified that the house wRsdangerolls. but thRtit leaked', arid needed partitions to separate the laborers occupying it; third, that the storm was of such an unusual and terrific character, so little to be expected. that the failure on the part of the defendant to build the house strong enough to resist tbe pressure of such a wind was not any lack of ordinary care and ,prudence, but that the destruction of the section-house was due to the act of God." " " The presented to these findings have rendered it to exaqline and consider the evidence ,submitted in the case, alld Buch exami,nation and consideration I have given. I find the weight of the eyide/lCeBUpports these findings, and thaUhe exceptions thereto are not well, taken,. This disposes of ,the main case., . Tbe,eviQ,ence, ,bowever,shows that the intervenor, an employe of the injured in tlle Jine of his l;iuty, and without his apparent within the rule of