PARODY
v.
OHICAGO, M... ST. P. BY. 00.
205
or a conductor employed andohargedwith the management and eontrol of the means and agencies by and with which the corporation carried on its business. The conclusion is that when Van Kirk invoked the criminal law as he did he was not aoting within the scope of his agency, or in the course of his employment, and the company cannot be held responsible for his action, and that, therefore, the motion for lit new trial must prevail; and it is so ordered.
CHICAGO,
M. & ST.
P.
Ry.
Co.
((lircuit Oourt, D. Minnesota.
December Term, 1882.)
Where a master has expressly promised to repair a defect in the machinery used by the servants in his employment. the servant may recover for an .injUry caused thereby within such a period of time after the promise as would be reasonable to allow: for its performance. 2. SAME-PROMIS;'; BY AGENT OF MASTER.
A promise to repair made by the agent of the magter is binding on the master, but the burdell of proof is on the plaintiff 'to establish such promise. 3. SAME-MEASURE OF DAHAGJIl8.
The Itward of damages in such cases must not be excessive. They are only to be remunerative,-compensatory,-a just and. fair amount for the injury-sus_ tained.
Ueland Shore8, for plaintiff. Bigelow, Flandrau tl Squire8, for defendant. NELSON, J. t (gharging jury.) This suit is brought to recover dam· ages for.a personaLinjury. 'The plaintiff was in the defendant's em,ployment as bl:akeman on. a switch-engine in: defendant's yard. His duty was tQ couple the .enginee,'to cars in making up and..breaking trains. I:;le alleges, the injury complained of was, the resultofa de,fective and unsuita;ble draft-iron or draw-bar attached to the engine, a,ndthat he .informed the yard-master of the dangex attending its use, who promised to remove it, but failed to do so. The defendant takes isaue upon the alleged defective construction of the and in its use, and it being conceded that the .plaintiff remained ,in the service of the defendant, coupling with thia draw-bar, after of its danger, allegea that it is not responsible,fol' the in· .juJ:Y. The issue is sharply define.d, and presents, in connection with
«
·
206
FJWEBAL REPOBTER. '
the facts for your detenninationja consideration of an exception to the rule exempting the common employer from liability to one employe for an injury caused by the negligence of a fellow-employe, and in some respects the duty and obligation of a railroad company to its employes. The burden of proof is ,on the plaintiff, and he must establish to your s·atisfaction that the injury occurred; that the drawbar ,was dangerous to operate and defective in construction, and that he informed the yard-master of the fact, who promised to remedy the defect, but did not; and that the draw-bar was the approximate cause of the injury. There is evidence tending to show that the draw-bar was an improper one, and not in ordinary use by the company in the yard; that the switch-engine upon which plaintiff worked when first employed did not have it attached; and,that shortly after he worked upon this engine he complained to the yard-master, telling him that it was dangerous, who promised to remove it, but did not, and that he remained at work after complaint and unfulfilled promise until, on May - , 1882, he was injured. The evidence on behalf, 'Of the defendant tends to show that due care had been exercised in selecting the draw-bar; that it was safe and not defective in construction; nor dangerous, but safer than ordinary,draw-bars in use by the company; that it had no notice of any complaint from the persons using it, and never promised to remove it. It was necessary fortha defendant to use switch-engines in the yard with draft·irons or draw-bars at each end, in order to properly its business; and in supplying such engines for this work it was the duty of the defendant toexercis6 reasonable care in the seand safe appliances to be used. It owed this duty lection of to the plaintiff. It was under no obligation to furnish the safest known draw-bar. If the company observed all the care which prudence suggested, and was required by the exigencies of the situation, in securing and furnishing a drawlobar adequately safe for the plaintiff to use, it fulfilled its duty and performed its part of the contract. The work of coupling is an exceedingly hazardous one under the most favorable circumstances, and when the plaintiff entered such ,service it was implied in the contraot between himself and the dehe assumed the dangers which orJinarily attend the fendant performance .ofhis work :in which he voluntarily engaged, and that he risked tbesedangers for the compensation paid him. If he was not satisfied with the service he could withdraw. If it was too dan-
'&
BT. 'lI>.
RY. 00·.
20,7,
ger6us, and attended with great nab whiJh he did not 'care to take, the defendant, could not compel him: to remain,and if' he did the company did not :abaolutely insure his 'The injury being conceded, the first question for you to decide 'is, . was the draw-bar attached to the engine so defective -in its construction and manner of use that it -was dangerol18? 'rhe affirmative of this issue is upon the plaintiff, and he must prove by the preponder-, dangerous appliance, and ance of evidence that this entirely insecure for coupling, arndthat the defendant, in the selection of it, was wanting in care. !fha'has not satisfied you; by the evidence, that the defendant failed to exercise reasonable care in purchasing and providing this draw-bar, and you believe it reasonably safe if proper care was exercised in its use, then the defendant is entitled to a verdict, for the reason that it has Julfilled its duty and obligation in respect to the appliance furnished. On the other hand, if you should arrive at the conclusion' that the draw-bar was datlgerous, and defective in itsconstruetion, and also that the COlDpa.ny failed to exercise such caution' as w()lild ordinarily suggest itself to a prudent person, then you are to further consider whether the defendant was informed of its' iaangerOUI:l character, and promised to remedy it and provide 'another. . In regard to the notiae' required' to ' inform defendant of this, it is sufficient that notice 'was given' to· that agent or servant of the' 'de;;: fendant, who made a requisition' for the applilirtlces necessary to' be in the yard of the defendant, and whose duty it is'to guard against injurious cOJlsequences of defects in the particular appliances' used therein. Such a person is the yard-master. He ,represents the company, and since it delegated to him the' authority, 'to make requisition for engines, etc., for the use of the yard, notice·to him of gerous draw-bars will 'be notice to the defendant'. Heia the proper person, and if after such notice he promised to remedy it, a. failure to do so is the negligence' of!tliedefendant Tbe evidence ofcnotice to the yard-master a.nd It promise to remedy, The burden of proof is upon the plaintiff to show it., FIe must prove by a preponderance of evidence that he gave the notice promwitnesses testify to ise was made. The plaiptjlf ,a.l(l;d s()me, of the fact, and the yard-master il!i" equally positive th'at' 'no complaInt . was made by the plaintiff, or by anyone for him, or in his presence, and that he never promised to have the draw-bar removed. The plaintiff must prove that the defendant had notice of the danger in using this draw-bar, and promised to remedy the deftlcts; for
208
'EDERAL BEPORTEa
in no view of the case can he recover, although the draw-bar was dangerous, unless he can satisfy you of knowledge by the defendant, and a promise to furnish a safe and secure draw-bar. If he has not by the preponderance of evidence proved this, then he must fail in his action, and your verdict will be for the defendant. If, however, you find that the yard-master was notified of the danger in using this draw-bar, and that he promised to remove it or remedy the defect, then, before the plaintiff can recover, you must consider further and determine whether the plaintiff, in remaining in defendant's employ, assumed all the risk and danger of working with this draw-bar under the cir:lumstances. The following rule is recognized by the supreme court, (see 100 U. S. 225:) "There Clln be no doubt that wnere a. master has expressly promised to re-' pair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we thinlF. for an injUry suffered within any period which would not preclude all reasoMble expectation that the promise might be kept." .
If, in your opinion, the time that elapsed was unreasonable, and the plaintiff was not justified in relying upon the assurance of the defendant to remedy the defect, and that no prudent man would continue the employment when so long a time had elapsed after notice of the defect was given, and the promise to remedy it not fulfilled, the liability of the company ceases, and by remaining he was wanting in care and contributed to his injury, and the defendant is entitled to a verdict. If, however, under all the circumstances, in view of the promise to remedy the defect, the plaintiff exercised due care in continuing to use this draw-bar, and was free from fault at the time of the injury, then he is entitled to a verdict. Should you so find, the damages which you award must not be excessive. They can only be remunerative,-compensatory,-a just and fair amount for the injury sustained Verdict for plaintiff·.
See King v. Ohio. etc., R. 00. 14 FED. REP. 277.
UNITED STATES V. BOSTON .. A. B. CO.
209
UNITED STATES V. BOSTON SAME
& A. R. CO.
FITOHBU:aG
R. CO. February 16, 1888.)
(Diltrict (JOttrt, D. Ma88lJchtt8ett8. 1.
CARRIERS OF LIVE-SToCK-CONSTRUCTION Oll' STATUTES·
.By the provisions of the Revised Statutes of the United I:Hates, §§ 4386, 4390, no common carrier of cattle, sheep, swine, or other animals, conyeying the same from one state to another, shall confine the same in cars, boats, or vessels for a longer time than 28 consecutive hours, without unloading the same for' rest, water, and feeding for a period of at least five consecutive hours. Section 4387 gives to those who give such care a ,lien on the animals for. the expenses incurred, and relie,es them from liailility for the detention. Section 4388 fixes the penalty for violating lIuch statute at not less than $100 nor more than $500. Sections 4389 and 4390 provide that the penalty may be recovered by civil action in the name' of the United States in the circuit and district courts, and that the lien given by section 4387 may be enforced by petition in the district court. Authority for this legislation is found in that clause of the c6nRtitution which confers upon congress the power to regulate commerce among the several states.
2.
SAME-CoNSTITUTIONALITY ,OF STATUTE.
3.
SAME-PENALTY FOR VIOLATIoN.
,
The. penalty imposed by section 4388 is not less than $100 nor more than $500, where more than one animal is carried and confined in violation of the statute. The statute cannot be so construed as to make the unlawful confinement of each animal constitute a separate offense, and thull multiply the penalty by the whole number of animals.
On Demurrer. A.E. Pillsbury, for plaintiff. A. L. Soule, fOr Boston & A. R. Co. W. S. Stearns, for Fitchburg R. Co. NELSON, J. These cases are actions against railroad companies to recover penalties incurred under Rev. St. §§ The answer in each case contains a demurrer to the plaintiff's declaration. Section 4386 reads as follows: .. No railroad company within the United States, whose road forms any part of a line of road over which cattle. sheep, swine, or other animals are conveyed from one state to another, or the owners or masters of steam, sailing, or other vessels carryingortraasporting cattle, sheep, swine, or other animals from one state to another, shall confine the same in cars, bOllts. or vessels of any description for a longer period than 28 consecutive hours, w.ithout unloading the same for rest, water, and feeding for a period of at least live consecutive hours, unless prevented from so unloading by storm or other accidertal causes. III Elstimating such confinement the time dUling which the animals
v.15,no.3-14
