ATCHISON, T. &. 8. F.
charging him under the joint tariff three cents or five cents more than they ought to have charged him, - it is not a question in which the shipper is interested, when he sues to recover, to know what particular division may have been made of the five cents thus illegally charged. The shipper would have a.. right to look to all of the railways, or to any one of them, which had aided in committing the wrong, by receiving him a larger rate than he ought to. have been charged. If, by the effect of a joint tariff of rates the Chicago & Northwestern Company aided in putting in operation, the plaintiff was charged for shipping his grain from Scranton five, or six, or one cellt more than they ought to have charged him, the plaintiff is entitled to recover in this action the amount of the overcharges he has paid, regardless of what division may have been made, or whether there was any division, between the different companies putting the joint rate into operation; because it is not a suit to recover back the amount the defendant company may have received, but it is an action sounding in tort for damages, wherein the shipper seeks to recover the damages claimed to have been caused him by charging an illegal rate. The unlawful overcharge is the element on which the claim for damages is based. Under the law', it is within your province to determine whether or ,not interest shall or shall not be paid on the amount of overcharge, if nm find . any. If you find that the plaintiff has been overcharged upon particular shipments, it is not a IrUltter in which the law determines whether interest shall be given or not. In some cases founded on breach of contract, the parties maybe entitled to recover interest; but in cases for damages sounding in tort, (and this isa .case of that kind,) .it is within the province of the jury to award interest or not.. 'If" in order to, fairly compensate the plaintiff,in your judgmeot,he should receive 6 per,cent. interest, it is within your power to award it.
T. & S. F. R. Co. ". WiLSON.
October Term, 1891.)
(Circu(t Court of Appeals, Eighth
MASTER AND SERVANT-INll'mIES TO SERVANT-DEFEOTIVE TRAOKS.
While plaintiff's intestate and other railroad hands, engaged in a piece of wrecked track, were removing wreckage by means of a derrick-car, the derrick unexpectedly swung to the north, and upset the ear, and killed theintestate. The ground at the place of the accident was softened by prolonged rains, and there was evidence that immediately after the accident the north rail under the car was found to be several inches lower than the south rail, though there was no curve in the track,. and that the consequent slant was sufficiont to cause the derrick to 8wingas it did. Some witnesses testified that only three ties were laid under each rail; others that there were ten or twelve. Held, that such a slant of the track, whether due to careless construction or to the sinking of north rail after it was laj.d,is such a defect as constitutes negligence on the part of the railroad company, al1d'the question of its existence was properly submitted to the jury.' . . . The railroad company cannot .escapli\ liability for such negligence on the that it was the negligence of the intestate'8 fellow"servants, when the coIlipa'ny'. road-master was present, imd in charge of the whole work of reconstruction.
B. DltATH BY
action against a railroad company, brought under Rev. St. :Mo. 54425 et seq., by. a Widow for the dea'tlfof her husband while in its employ,evidence of the ages " ". ulf;the 'lhDdren ofthe ma'1'l."iage is admissible; for on his death tbe widoW becomes for the care oftlle children. Teth.erow v. Railway 00., 118 Mo. 84, 11 '. S: W; Rep; 810, followed·
.. SAHB..lYBAStrRB 01' DUl:AGBS-Loss 0., HUSllANll'S SOCIETY.
. Butio'such an actiQIl: pnder that statute,the loss of companionship or society of the is not an element of damagest.and it is error to instruct that the jury may cOnsider such loss'hl' estimating the aamages. Scll>aub v. RailiWay 00., (MOo Sup.}.·16r S. Rep. llUt , followed.
In Error ,to the Circuit Court of the .United Staws fortpe Eastern Judicial: Distrwt of Missouri. byJMary A. Wilson against the Atchison, Topeka & Santa Fe Railroad Company for ,the death orher husband, a section hand in defendaIitla employ. There was judgment for plaintiff; and defendant brings' , . . Gardiner Lathrop and Ben Eli Guthrie, for plaintiff in error. B.ltdj)yBtirt and John F. MitcheU, for defendant inarror.
HALL1i1l'T,'J. InthemOl'lth ofAprilj 1890, a freight train was wrecked atorne81i Salt river, io"Maconcounty, Mo., on aline of railroad owned and opel'l1Wd by thefilMntiff in In the evening of the same day a ]argIH6ree'ofmen w8Sll.Ssembledat the wreck fodhe purpose of clearing the- track and repairing it as speedily as possible. These men were employeso(the company,ofvarious occtlpations,collected from the line of the r(llld: It was not the practice of the company to keep men for thebuBines8'of removing wrecks,but in such an emergency mell were calledfrcitnaUbranchefl ·oftheservice as occasion might demand. For 'the most part they were section-men j ;and wjththem: came the division superintendent of the road, William E. Costello, the road-master, Charles A. Lehman, and the William B. Scott. It is not clear whether any of these officers had general supervision of the entire force and of all the work to be done at that time and place; and, in the view we take of the case, it is not important .to determine that. question. It is the fact, clearly established by the evidence, that in repairing the1traok,ol'l'econstructing it in a manner to be presently noticed, the work was the of the ;road-master, Ch!!-rles A. Lehman, and to duty. Circumstances were not 10 hand. Ram been falling for several days, and was'fltiUfalBng, and the ground was very wet, S()ft,' and muddy. The not be completed in daylight, and it was necessary to carry itc:';lb tbrougbthe night, with the aid of lanternllandbonfires, as )night under sky·. 'rhEl plRce wreck was a high :',embanknientorfill, 20 feet'or more above the levelofthe adjacent land, below held. more, odess water. The width of the embankment was not much greater thllin the track,so that there was nQt m:llC:p building a temporary around the wreckage, or removing the old track to accomplish the same thing. The general course
ATCH1l30N, T; &.8. b'.R.
'Of tberoad at that ,place is east and ,west,'and about 180 feet of track
Wtlflt of ,the bridge over Salt river was displaced and torn up. Upon look.. ingover·the ground, and considering the;work, to be done, Lehman dedded to move the track two feet south of its original position on the embankment. In doing this, part of the wreckage would be avoided, and the remainder would have to be removed as the work progressed To this work Lehman appointed Eaton, foreman of section 14, and gave his peraonal attention to other matters;: but he says he returned twice or three times during the night" to see how the track was being repaired, and if everything was safe." The work of relaying the track in this man.. ner was carried on throuJl;h,the greater part of the night, until at length some trucks from a freight-car were found lying across the north rail, of the original track, which it was necessary to remo'Ve. ' After several un.. successful efforts to remove them, Costello, division superintendent; came upon ,the ground and suggested to McOormick the use of the derrick or wrecking-car. McOormick had been trying to remove the trucks by means of a cable attached to a locomotive,and with men using crow-barS and possibly other appliances. He described himself as "car-repairer and wrecker-inspector," and he had been for some time in charge of the derrick or wrecking-car used on this occasion. More than any other person on the ground he seems to have had 80me special duties, in 7conneetion with his car,in the removal of wrecks; but he had not, so far as shown in this record, more than one man in his charge, and up to that time, on this occasion, he had worked with his own bands. in common with other employes of the company. He was superior to the others only in his knowledge of the use of the wrecking-car, and in having charge of it when it was in action. McOormick' assented to the use of the wrecking-car, and it was brought up for the purpose of removing the trucks. It then st.ood on the .last rails of the new track laid by Eaton, which at ,this point were about 12 or 15 inches south of the rails of the old track. The trucks which were to be removed were partly on the northerly side of the new and old tracks, but in front of the wreckingcar. The plan was to raise them sufficiently so that they could be moved south of both tracks when suspended on the swinging boom of the derrick. For that purpose several men were called to assist McCormick in pushing the trucks to the south, when they should be lifted above the tracks with the aid of the. derrick. Other men mounted the car, by Costello's command, for the purpose of working the derrick, and in due time the trucks were elevated above the tracks as was proposed.. But, con- , trary to all expectation, McOormick and the men who had hold of the trucks were unable to control them, and the trucks went north rather than south; the wrecking-car was overturned; and James W. Wilson, one of the men employed in working the derrick, fell under the trucks of that car and was killed. Wilson was asectionman from section 14, and his foreman was Asbury Eaton. This action was brought by his widow, upon a statute of the state of Missouri, (Rev. St. § 4425 et seq.,) to recover .damages resulting to her from· his death, and she hadjudg-' meot in the circuit court.
.Referring, now, to the acts of negligence charged in the complaint, and. the .evidence at the trial on that subject, the prominent question of fact:in:· the case is ithe condition of the new track on which the wrecking-car stood at the time of the casualty, and whether it was well built. SeveraLwitnesses testify that immediately after the car was overturned the north rail was observed to be two to four inches lower than the sou th rail, and those who deny.thestatement seem not to have given much attention to the matter. If such was the fact. it may have been due to carelessness in construotion in placing t.he rails in that position, or to the sinking of the north rail under the weight of the wrecking-car. In the hitter case, the result would indicate that the rails were not adequately supported by ties. One witness testifies that only three ties were laill under: each rail; others say four to six were laid; and still others give varying numbers, up to ten or twelve.. Whether the north rail was first laid lower than the other, or sunk in the tnud under the wrecking-car, if in fact it was lower than the other immediately after the casualty, it was obviously a fault in construction. The track was straight at that point, and therefore there was no reason for placing one rail higher than the other, as is usual on curves. It is to be observed, also, that the new track was not intended for temporary use in removing the wreckage only, but was for the general traffic of the road during the following day. and perhaps longer. Under all the circumstances prevailing at the time, the duty of the company to restore the track as speedily as possible, and for that purpose to go on with the work at night, through rain and mud, no one will contend that the company shohld be held to the same care in building its track as would be demanded under more favorable. conditions. Nevertheless, some care was neoessary to make a track adequate to the support and safe passage of trains; not aloIJe in thE! iriterest of the public, who were using the road extensively,. but also in the interest of the employes of the company who should be sent over the road. With certain well-understood qualifications,. which.'it is not necessary to definein this connection, a servant is as fully, entitled to a safe track as any traveler over the road. If the traok Was in fact defective, and by the use of more ties or in any other way it could: have been made safe forthe wrecking-car, the duty of the company ihtlultregard is clear and unmistakable. It seemato be conceded that the north rail, being lower. than the other, would operate to deflect the load on the derrick in the manner arid to the extent which . actually occurred; so that it was a material question for the jury to consider whether the north rail of the new track was first placed lower than the south rail, or, not being so·placed, whether it sunk tmderthe wrecking-car, arid thus <laused the load on the derrick to swing to the north and overturn the car. But, if this be allowed, we are urged to declare that the new track was laid by fellow-servants of Wilson, for whose negligent acts the company cannot be charged .at'the 8uit of one of their number. But our vision is nd so· limited, since we are bound to find the directing mind of the company, and that is a matter of no embarrassment in this instance.
& S. F. R.
Theroad-m'l\Ster, who, by the title and proper function of his office, had full authority OVer the track and .the manner of building it, was there in perSon, andi ashe says, vigilant and active in the discharge of his duties. No otherofliOOl' C9Qld represept the company better or more fully in the .:matter of constructing the track, and the companycoulc,lnot do the work at all unless by the agency of. a natural person. We are therefore authorizeli to sarthat the company was present in such form and degree as is possible to a corporatiol!, when this track :was laid, within the principle declared in Railway Co. V. RoBS, 112 U. S. 377, 5 Sup. Ct. Rep. 184, and thus became responsible for all that was done or omitted at that time. The circuit court did not err in declining to instruct for plaintiff in error, or in submitting tatbe jury upon the evidence the issue as to the condition of the railway track as the probable cause of Wilson's death. As to the issue upon the use of the wrecking-car, the writer holds that it was improperly submitted to the jury, and that the fifth instruction asked by plaintiff in error ought to have been given by ihe court. But this court is unable to agree on this proposition, and declines to express an opinion upon it. Two other questions, affecting the mt>asure of damages, are presented in the .we have sought only to ascertain what construction has been given to the statute by the supreme court of Missouri. The first arises 0ut of the admission of testimony as to the number and ages of Mrs.W1Ison'a .children. When it was .learned that the children were of an age to support themselves, the testimony was abandoned by counsel for]'llaintiff below. But it was not withdrawn from the jury, and counsel for plaintiff in error insist that it had weight with that hod y. If sO,'the supreme court of the state has held that, in an action bYa wife for the· death. of her husband, such evidence may be received, for the reason that on the death of the husband she becomes responsible for the care of the children. Tetherow v. Railway Co., 98 Mo. ,84, 11 S. W. Rep. 310. And this must be accepted in federal courts as the meaning of the statute on which the action is based. . .Error is also' assigned on the charge of the court that the jury might ;ct>llsider the 'loss which defendaht in error sustained in consequenqe of In two cases reported from being deprived of her husband's the supreme court of Missouri before this action was tried, it was held that such damages were properly allowed in an action by a husband for an injury to his wife. Blair v. Railroad Co., 89 Mo. 335, 1 S. W. Rep. 367; Furnish,v. Railway Co., 102 Mo. 669, Ii> S. W. Rep. 315. the absence of other expression from that court, it might wen be assumed that the same rule would obtain in an action on the statute by husband or wife. Sin<;le this case was tried; however, an opinion of that court b!1s been published which distinctly declares that, in an action on·th6 statute by a wife for the death of her husband, nothing shall be allowed forlossofsociety. v. Railway Co., (Mo. Sup.) 16 S. W. Rep. 924. As l;Llready poinwd 0ll!' the ,earlier cases were common-Jaw actions for injuries to tb,Qwife, and it is.notto be assumed that t46 last case is in
loonfiictwith:iheothers.. 'Oii,theiauthority &lwab C'ase, and heItmuse it accord"with thecurrenti Of afithority elsewhere, ,we 'leal bouncltodeclare that the law'l)f Missouri-is and '" has been that, 'in l"Ii lietion onlthe statute,()f:'th!l.t state by awindor 'the' death of her 'theilol!ls of companibbsbip or society of,tine'husband is not an element of damagea,and .there was anor' in the instruction tri'entieined.'1'he judgment of the circuit court !Wi'll.be revel'sed, and the-mUse will' be retnanded for a: :tiew' trial. ' rt
'eral.' tI. LINDVALL. " /.
ot .Appel.tlf,E1,g1tih ,C1.reuU. , ," ;1, ,
,1. MA.sTBR AND STBUCrnRB....SUFIIICIBNOY Oil EVIDENCB., , ;rn, ,waking a railroad llU,', a , trlllltle "was built the end of, :the fill to cafl'y out the dirt-cars tor dumpflig, each car cont<S:illinga cubic yard of dirt. The trestle was made of bents, consisting of two pdJ.es 'with across-piece spiked tQ the tQI1, ,the feet being !:leld tog,ether by cross-bracing." Six bents, varying from 21 to 24 feet high, had been erected beyond the endo! t,he dump. and stringer!! had been run aCrOss the first 5,but were not' secured unless by a small rope tied round the The tops of the bentaincj.ined slightly towws the jill, and thev were not brace'd each other, or supported longitudinallY In any way. ttnder the dlrectionofthe foreman, plaintiff and others were enj;l'aged In'runnlngootaatringer, whlcp. wItS 32 feet long, to reallh: t1l,e last bent, whillh:lfas about 26 feet away, and just Bo8'they lowered the end of 'It onto the cap the whole structure fell, Injuring plainWf.·. Several civil engineers,testified that such a; structure Was unsafe. HeW, , . suffioi/lnt evidence to ",ar,ran H pejoryin finding th,1lIt, the struoture was not built Witha due regard to the safetYbftil.osQ UPOIUt. " So BllIE-V14:lll-PIUNCIPA.L-FoltBMANOJ' :K1ILWAY CONSTRUCTION. A in charge of ,a g!'lI!!l' of workme,n,engagedin construction work on a railroad, With full power to hire and discharge men and direct them when and where and how to work, Is a Vice-principal, notwithstanding that he ocoasionally lends a hand In the actual manual labor. "REs ADJUPIOATA-DISMISSAL .A:rTER PLAINTIIIJ' RESTS. 8t. Minn. c. 66, § 262, subd. S, provides that a civil action maybe dismtssedbythe court witbout: a final determination on the merits, "where, upon the .trial and, before final submission of the AAse, the,plaintiff fails to substantiate or es· tablish his claim or cause of action, etc. Held, that, under the decisions of the state courts &ll shown In Craver v. Chr£stian, 84 Minn.. 897, 26 N. W. Rep. 8; .Andrews v. SchoolrD1.st., 35 Minn. 70, 27 N. W. Rep. 303; 'and Conrad, v· .Ba,ttldwVn, 44 Minn. 406, 46 N. W. Rep. 850,-80 dismissal on defendant's motion, after plaintiff bas rested, on the ground that 1:W has failed to establish a cause of action, is not a judgment on the merits such as W1ll prevent the bripging of a new suit. J., dissenting. 47 Fed. Rep. 195, affirmed.
Error to the Circuit Court for the District of Minnesota. Action for,damages for personal injuries brought by August Lindvall against John Woods and Stephen B. Lovejoy,partnersRS Woods & Verdict for plaintiff. Defendants appeal. Affirmed. STATEMENT BY CALDWELL, J. This action 'was brought by the deJfendant in enol' to recover fora personal injury' alleged to have been received through the negligence of the defendants. The issues were a general denial and a plea of former adjudication. Upon the conclusion ,of the evidence, the defendnnts moved the court to instrtl'ct the 'jury to