NEW YORK CENT.
HUDSON RIVEa R. 00.
ROBINSON V. NEW YORK CENT.
(Circuit Court, N. D. N8'lO York. January, 1882.)
Railroad companies, as carriers of passengers, must apply to the boiler of a locomotive used by them in hauling passenger trains every test recognized as necessary by experts; but they are not liable for defects which cannot be discovered by such tests:
PRESUMPTIONS-How OVERCOME-MoTION FOR A NEW TRIAL.
The testimony of unimpeached witnesses who testify positively to facts which are uncontradicted overcomes a mere presumption; but a verdict will not be set aside on this ground, unless the court is satisfied that the jury were controlled by their prejudices rather than by their impartial judgment.
On Motion for aNew Trial. E. Countryman, for plaintiff. M. Hale, for defendant. WALLACE, D. J. The plaintiff, while upon one of the defendant's cars as a passenger, in June, 1878, was injured by the explosion of the boiler of the defendant'slocomotive, which was being used to push the train out of the yard, and brought this action on the ground of negligence to recover for his injuries. Upon the issue of negligence the plaintiff rested his case by proving the explosion. The defendant produced its employes, who testified to the exercise of due care in the management of the boiler at the time of the explosion, and who also testified that the boiler had been recently overhauled, repaired, and tested, aI\d found safe, and that the explosion resulted from a hidden flaw in the iron of the boiler which could not be seen. The jury were instructed that they.might infer negligence upon the theory that the explosion would not have taken place unless the boiler had been in a defective condition, or unless there had been some omission or mismanagement on the part of those in charge of it' at the time. They were also instructed that it was incumbent upon the defendant as a passenger carrier to see to it, by every test recognized as necessary by experts, that the boiler was in a safe condition; but that it was not lil;tble for a defect which could not be discovered by such tests. The first instruction is not criticised. It is elementary that in action for negligence if the plaintiff proves he has been injured by an act of the defendant, of such a nature that in similar cases, where no injury is known to ensue, he raises a due care has been presumption against the defendant which the latter must rebut.
The other instructions were strictly correct. The jury were not told that the defendant was required, to adopt every test known to experts to ascertain, the, safe condition of the boiler. If this instruction had been given, within some of the authorities it would not have been erroneous. It has ,been frequently declared that the carrier of contracts for their safety as far as human care and foresight can go, (Stokes, v. Satoustall,13 Pet. 181; Pa. R. Co. v. Roy, 102 U. 8.451,) and must adopt all the precautions which have been practically tested and are known to be of value, and employ all skill which is possessed by men whose services it is practicable for the cartier'to secure. Smith v. N. Y. e.t H. R. R. Co. 19 N. Y. 127. But the instruction was that the defendant was not exculpated if the defectco'hld have been discovered by the application of all tests recognized by experts as necessary. .Jt flurely would, not express the true extent bfthe carrier's liability to say that the carrier is exonerated if the defect could not be discovered by the application of some of the tests which experts recognize necessary. 'If there was any test 'recognized as necessary which not applied, the carrier failed td comply with its obligation. Of courae it was'not the of the instruction thatit is the duty 'of the carrier to adopt all such speculative and theoretical pr.:lcautions as might be thought necessary by experts, and the instructions are not impugned upon:this ground. The precautions referred to were thotl6 recognized as' necessary by men of in the testing of steam-boilers. The more doubtful question presented by ihe motion for a new trial is whether the jury were justified in disregarding the evidence given. by the defendant to ovetthrowthe presumption established by the fact of the It' is, doubtless, the general rule that where unimpeached'witnesses testifydistinctlyand positively to facts which are uncontradicted, their testimony suffices to overcome a mere presuIhption. But when,' as here,' the testimony proceeds from persons who would be guilty of a criminal fault unless they vindicated themselves from the presumption arising from' the transaction,'a question of credibility is presented to the jury. Elwood v. W. U. Tel. Co. 45 , N.,Y. 549. court might not feel concluded bythis consideration on It motion for a new trial, but it would not feel at' liberty to set aSIde the verdict, unless so clearly convinced,tha.t the witnesses were entitled to full credit as'to be satisfied that the jury were controlled by their prejudices rather than by their impartial judg-
HUDSON V" K,\N.sAS PAOIFLC, BY. CO.
meLt. Thi.s i.s not .such a case. Although th13, witl1 ess who teste,d the boiler claimed to have made an adequate and thorough test, when it ,appeared that this consisted simply in firing up the when the repairs on the boiler were JU,ade, until the indicated the steam pressure obtained in ordllary use, a fair inference arose adverse to the theory of avery careful experiment. The motion for a new trial is denIed.
(Oi1'puit OourtjD. ,ClOtorado.January, 1882.) 1. RAILROADS-COUPON TICKETe--RIGHTS 011' HOLDERS. a railroad company issues & ticket entitling the holder to a passage , over its own and connecting lines to the place of destination mentioned in the ticket, an!! there is no limitatiion in it lipon' the right of the holder ,to transfer it to 'another, held, that upon ,the refusal of 3 connecting line to accept the ticket, and of the'contracting company to furnish a local ticket over that line , , or the amount of money necessary to procure one, the holder has a right of , action against the original contracting company for breach of contract; and this right is assignable, under the laws of the state of Colorado, so as to give a right of action to the assignee. " '
VEItDICT-DEFECTs IN PLEADING CURED BY.
It is too late after verdict to object that the, assignee alleged that he purchased SQch ticket, ,:Wohen the proof shOWS that, it was bought that he failed to allege a failure on the part of the contractip.g company to redeem the ticket. ' ' '
On .Motion for aNew Trial. ..,. F. Welborn, for plaintiff. Willard Teller and J. P. Usher, for defendant. HALLETT, D. J. Plaintiff he purchased at, St. Louis and at Kansas City, Missouri" in the year 1879, of. defendant's agents, certain 'passenger tickets over the lilles of the Denver & Rio Grande Railway, in this state, payh;J.g therefpr the pricel;! named in the complaint, and that the tickets were, and are, worthless, as 'the Rio Grande Company refuse :recognize them. At the trial it appeared that the tickets, were issued by eastern companies having lines extending to Kansas City, not to the plaintiff, as alleged, but to travelers in the regular course of business. When issued, they vided for passage over the line of the cO;ffipany by which they were issued to Kansas City, and from that place to Denver, over defendapt's line, and from Denye):' to <iestination, over the lines of, the ',Rio Grande Company. COl;lpop.sW,ereattached· applicable to the
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