564
FEDERAL'REPORTER.
TOTTEN
v.
PENNSYLVANIA RAILROAD
CO.
(Circuit Court, D. New Jersey.)
1.
NEGLIGENCE-PERSONAL
OF JURY.
In an action for damages for personal injuries sustained by reason of the negligence of the defendant, a railroad company, where there was great discrepancy in the evidence, the question of whether injury was inflicted by the negligent acts charged is for the jury to determine. ' 2. SAME-AcCIDENT-LIABILITY FOR INJURIES,
Where it is shown that plaintiff was injured by the accident, the question whether defendant is legally responsible is a mixed question of law and fact. 3. SAME-EMPLOYER AND EMPLOYE-LIABILITY.
The master is not liable to his servant for injuries produced by his fllllowservant engaged in the same business and common employment, provided there be no negligence in the appointment of such negligent servant, or in hisl'etentionafter notice of his incompetency. 4. SAME-OONTRAC'l' OF EMPLOYE.
When an employe enters into an engagement with his employer be assumes all the risks of the service arising from the negligence of his fellow-servants engaged in the'same business or common employment. 5. SAME-DuTY OF EMPLOYER.
When the business is carried on by machinery, ,it Is the master's duty to keep the machinery in such condition as, from the nature of the business and employment, the servant has the right to expect that it would be kept, and where he fails to do so he is liable for injuries arising from his negligence. 6. SAME-DAMAGES.
In estimating the damages for personal injuries caused by negligence, the rule is that it should be such an amount as will compensate for pain and suffering, expense of pbysician and medicines, loss of wages if a laboring man, loss of business if engaged in business, also injury to him physically and mentally, affecting his capacity to labor or carry on business; a'nd in considering these the jury may include not. only past losses but continuing l\>sses, where the evidence satisfies them that the injuries will continue.
Leon Abbett, for plaintiff. James B. Vredenburgh and Edward T. Green; for defendant. NIXON, D; J;, (charging jury.) rrhis is an action of trespass on the case, brought by the plaintiff against the defendant' corporation to recover damages which he alleges that he sustained by reason of the negligence of the defendant. The plaintiff is a machinist by trade, and was employed in the workshop of the defendant, at Jersey City, on the first day of November, 1880, repairing a boiler. While thus occupied an engine broke through the closed doors of the shop, struck the boiler on which he was working, and inflicted upon him injuries from which he now claims to be suffering. Two questions are at once presented for consideration: (1) Has any injury in fact
TOTTEN V. PENNSYLVANIA RAILROAD CO.
565
been inflicted? (2) If SO, was the accident one for which, underthe cixcumstances, the defendant corporation is legally liable? I advise you to take up this case and consider these questions separately and in order. The first has the plaintiff in fact suffered injury? You have heard his statement. The burden of proving this rests upon him. He must satisfy you to a reasonable certainty that some injury has happened to him from the negligence of the defendant before you come to the question of the amount of damages. . The responsibility of deciding this is upon you. I express no opinion, but ask you to weigh all the evidence and to form your opinion from its character and weight. Commence with the beginning-the time of the accident in the erecting house. Consider the testimony of the plaintiff and the other witnesses, who were cognizant of the condi. tion of affairs then and immediately afterwards. Go with him toi the hospital. Call to mind the ,statements of the physicians of the hos· pital a6 to their examinations and opinions. '. Without dwelling upon the details afthe evidence on this··point,let events, which, as it seems to me invite your attention to two me, have an important bearing. I allude to the two examinations of the plaintiff-the first, by Dr. Duryea, on the sixteenth of March, 1881, and the other, by Drs. Watson and Van Varst,.·on the fourth of April-within three weeks of each other. Dr. Duryea's first attention to the case was on the sixteenth of You heard his statement of the sympto.ms as he .examined them. He fully describes the objective symptoms which he then found. Drs. Watson and Van Vorst had been more or less familiar with, the case from the start.., 'You will recollect what their testimony was as to the plairitiff'sj(londitionon too"fourth of April. There :is a;: great discrepancy-l have almost said 0; vital ·contra. diction of the evidence of these physicians, which it ·m youridilty to reconcile; if' you can, and .if you cannot, then to det'ermine which you will believe. In determining this, ,if you have to determine it, it· is proper tbat you should remember the relations whichWatsdn:hore. to the company, .and how far .that relationship the truth,of his testimony. But, at the B8imetimej you Bhould: alsoreeollect< the: relation of physician and patient :which.· Duryea had with the plSiintiff,. and how far his judgmentar clIIndor waB affected by it... So·far as it-appears, Dr. Van Vorst had no special connection with either·
566
FEDERAL REPORTER.
of the parties,' except so far as he had the relation of an assistant to' Dr. Watson in the hospital of St. Francis. After a patient review of all the evidence, if you conclude that the injuries of which the plaintiff complains have not been caused by the accident on the first of November, your verdict must be for the defendant. We must not allow our judgment or sense of justice to be perverted by our sympathies and feelings because the plaintiff happens to be a poor man and the defendant is a large corporation. The law recognizes no difference in regard to parties. All stand upon the same level in a court of law, and the court and jury must be careful to mete out exact justice to all, without regard to mere external condition and circumstances. If you decide that the injuries, real or alleged, of the plaintiff did not flow from the accident, your verdict will be not guilty, and you need go no further, as the case ends here. But if you reach the conclusion that the plaintiff was injured by tbe accident, you will proceed to inquire whether the defendant is legally responsible. This isamixed question of la.w and fact. So far ali the law is concerned, the court is under the responsibility of stating it to you, and you must accept it as stated; and, as to the facts, you must decide them under and according to the evidep.ce in the case. You have hea.rd much said hereabout the responsibility of a common employer for injuries happening to one employe from the negligence and carelessness of a co-employe. The general rule on this subject undoubtedly is that the 'master is not liable to his servant for injuries produced by the negligence of his fellow-servant, engaged in the same business and common employment, provided there be no negligence in the appointment of such negligent servant, or in his retention after notice of his incompetency; or, to put the rule in words which will be clearly intelligible to the jury, if Totten has received injuries from: the negligence and carelessness of Dougherty, at a time when Totten and Dougherty were engaged in a common employment, the railroad company is no more responsible, and Totten has no more olaimagainst the company than he would bave against Dougherty if the injury had been the result solely of the neg" ligence of the company. And this for obvious reasons. An employer does not guaranty his servants against accidents. One of the considerations which enter into the compensation of servants 1S their exposure to the risks of the service. As a. rule,the greater the risk in this respect the larger the compensa-
TOTTEN V.PENNSYLVANIA RAILROAD 00.
567
tion demanded and received. Without regard to the printed rules which the defendant company kept exposed to the view of workmen on the walls of the workshop, which, in their reference to this case, was a notice that they were not to be held responsible for accidents, the plaintiff, when he engaged in the service, said, in law, to 'the defendant: "I enter your employ as a machinist, and go into the erecting shop used for the repair of engines. I accept as compensation the money which you agree to pay, not onltfor the value of my labor, but for all the risks Which t necesaarily assume and expose myself to from the carelessness of my fellow ants engaged in the same busiMSS. I am aware ,as to how the business mUllt be carried on. The defective engine must be brought into the shop. 1 see the machinery by which this is done. There is a. stationary engine, with its engineer, upon a transfer table. There is a. locomotive with its engineer to furnish the motive power to getthe into the shop after the transfer table has brought about,the necessary connection of the tracks. I kno w that it is usual, in repairing boilers, to remove the wheels" place: the boiler under chucks, and perform the: work oyer the track. l{nowing all these facts, I enter the serv,ce and take .the .risks which may arise' from the neKligence of my fellow-ser,vants engaged in the same business!>r common . employment."
That is the legal interpretation of the plaintiff's language when he entered the servioe of the defendant. But the question still remains, ",ho arEl fellow-servants? They need not be in the same kind of work; they need not be in the same shop. I think the test here is, did their employment and wdrkcon· duce to a common result? and that is the question· for you'to ask yourselves when you inquire whether the plaintiff and Dougherty and Vandewater were fellow-servants engaged in the same COIUllloh'bl1einess. If you find that the business in which these three men wete respectively engaged was simply carrying out proper methods and arrangements for the repair of the engin.es:of the company, then they were fellow-servants in the same business, and the defeilda,nt·cOni. pany is not liable to the plaintiff, unless, in further looking into'the case, you come to· the conclusion that the'accident did not' occur from the negligence of these fellow-servants, but from defects of the rita;. chinery furnished by the company for the performance of ,this work, and which defects were bf a oharacterthat the compa.ny.was 'bonnd to notice. The rule upon this subjeot is that when the business is <;arried on by machinery it is the master's duty to keep the machinery in such "
568
condition as, from the nature of the business and employment, the servant had the right to expect that it would be kept. Where he fails to do this he is liable to the servant for the injuries arising from his negligence. This inquiry has reference only to the engine No. 362, called the any Modoc. I do not understand that the plaintiff claims there other defect. You heard the testimony upon this point. Vandewater says that the engine was all right; that the wooden plug was not nsed because there was anything defective about the engine, but for greater precaution against accidents when the engine was left alone; and that the accident in this c'ase resulted from Dougherty interfering where he had no business. If there any testimony that there was such defect about the Elngine as hindered its proper "\forking when jn the hands of VandeWater, I do not recollect it. :Sut you are the judges of that. If you find that the plaintiff and the engineers of the two engines were engaged in cornman business and were co-adventurers in employments conducing toa common result, or if you find that the engine was reasonably fit for the duty that it was sent there to perform, your verdict will be for the defendant; but if you find either of these facts in favor of the plaintiff, and likewise the first question to which I adverted, as to whether the injury complained of had been in fact committed, then the only remaining matter is the question of damages. This is a question of fact for the jury, with which the court rarely interferes. The rule is that where one is injured by another under such circumstances that the injuring party is liable for damages, he should pay such an amount as will compensate for pain and suffering, expense of physicians and medicines, loss of wages where he is a laboring man, loss of business when engaged in business, also injury to him physically and mentally, affecting his capacity to labor or carryon his business; and, in considering these, the jury have the right to include not only past losses, but for continuing losses, where the evidence satisfies them that the injuries will continue. These observations cover the ground taken by the respective coun· sel in their special requests to charge, and you will please retire and consider 'Your verdict. The jury found a verdict in favor of the plaintiff for $2,500 damages.
GRAVblLLE Ii. MINN.EAPOLIS & ST. L. RY. 00.
569
GRAVELLE
MINNEAPOLIS
& ST. L. By. Co. May, 1882.}
CCirc'uit Court, D. Minnesota.
NRGI,lGENCE-DUTY OF EMPLOYERS-LIABILITY.
A railroad company is bound to furnish to its emploJ'es reasonably safe and convenient machinery with which to perform their duties, and if it fails in this, and an employe is injured on that account and without fault of his own, it is liable in damages, 2. SAME-CUSTOM OF RAILROAD YARD.
Where the custom of the railroad cOlUpany was to allow links to be scattered about the yard for any employe to pick up when needed for use in coupling cars, failing to affix the link to the tender was negligence of the company' alid not of a fellow-servant of the employe. 3. NEW TRIAL-INSUFFICIENT GROUNDS.
Alleged variances between the allegations and the proof do not constitute a sufficient ground for a new trial. 4. MASTER AND SERVANT-FELLOW-SERVANTB.
Fellow-servants are such as are employed 'in the same service and subject to the same general control; but if a railroad company sees fit to invest one of its servants with control or superior authority over another with respect to any particnlar part of its business, the two are not with respect to such business fellow-servants, One being subordinate to the other.
Motion for aNew Trial. This case was tried at the last term before 8 jury, and resulted in a verdict in favor of the plaintiff for $3,500. Counsel for defendant moves for a new trial because of alleged errors in the charge. James D. Springer, for motion. A. B. Jackson and C. K. Davis, contra. MCCRARY, C. J. The defendant complains that there was etTor in the charge of the court upon two points, to-wit: (1) As to the eflect of the absence of the link from the tender; and (2) aa to the effect of the omission of the assistant yard.master to signal the engineer to slow up when approaching the car to which the coupling was to be made. Upon the first point the jury were charged to determine from the evidence whether the absence of the link from the tender was such a. defect in the machinery as the plaintiff had no reason to apprehend; and whether its absence was an unusual thing; and whether, in consequence of it, the plaintiff was subjected to extraordinary dangers and peril. They were also charged as followa : "If you find that it was not unusual to have links left off the tender, then the plaintiff of course was bound to be advised of that fact, and cannot .recover upon that ground; but if you find that it was the duty of the railroa4