NAYLOR
v.
NEW YORK CENT. & H. R. R. CO.
801
enrcise of the care of a prudent mall under the circumstances. The plaintiff had the right to have all these questions of fact passed upon by the jury. This right was guarantied to herby the supreme law of the land in the eighth amendment to the constitution. And this right involved, not only the existence of the facts themselves, but the inferences as to the exercise of due care to be drawn from the facts when established. ,Mangam v. Railroad 00., 38 N. Y. 455; Patterson v. WaUace, 1 MacQ. 748; Railroad 00. v. Stout, 17 Wall. 657. The answer to the juror's inquiry is argued to have been misleading. This argument might be well founded if the answer had been all the ins-truction there was on the subject. But instructions had been given to take the whole situation, as found to exist, into consideration to determine whether there was any want of due care in taking the way which the intestate took to leave the train. The answer merely reminded the jury that the circumstance inquired about was to be considered with the others. Giving this anSwer would not appear to make necessary goin? over the whole again. Let judgment be entered on the verdict.
NEW YORK CENT.
& H. R. R.
CO.
(Oircuit (Jourt, No D. New York. January 21,1888.)
1.
MASTER AND BERVANT-NEGLIGENCE-FELLOW-SERVANT.
In' an action against 0. railway company for the death of plaintiff's intestate, who was an engineer. it appeared that the death was caused by the negligence of a switchman, who left a switch open. Held, that the engineer and the switChman were fellow-servants. l ' In an action against a railway company for the death of plaintiff's inte&tate. resulting from an accident, caused by a misplaced switch, it appeared that the, switch target was painted green, and the plaintiff contended that if it had been red it could have been more readily seen at a distance. and en" abled intestate to stop his train in time. Held, that as all the switch targets on the road were green, and had been for two years. during which time inhad been in the employ of the company, he is presumed to have accepted it as one of the risks of the employment. , In an action against a railway company for the death of plaintiff's intes· tate, who was an employe of the company, it appeared that a few months before the accident the company had changed the direction in which its trains
2.
SAME-NEGLiGENCE -RISKS OF EMPLOYMENT.
8.
SAME-NEGLIGENCE-INCREASE of'RISK.
lU:\,on the point as to who are fellow-servants within the meaning of the rule 6lI.. emptmg the master from liability for injuries received by an employe through the negligence of a co-se,rvant, see Reddo,n v. Railroad Co., (Utah,) 15 Pac,· Rep. 262 and n,ote; Van Wickle v. Railway Co., 82 Fed. Rep. 278; ThelemSD, v. Moeller, (Iowa, 34 N. W. Rep. 765' Railroad Co. v. De Armond, (Tenn.) 5 S. W. Rep. 600' Railroad o. v. Norm, <va.) 4, S, Ji). Rep. ,211; Tortans v. R, Co., Id. 889, ; Olson v. So., (Ml.nn.) 85 N. W. Rep. 866.,j Connelly RaIlway Co., Id. 582; Ewald v. Railway Co., (WIS.) 86 N. W. Rep. 12; ,J!;aston v. Railway Co., 82 Fed. Rep. 893.
6
802
.. FEjPERAL·· REPORTEjR.
,
.JilIn C?p. its two track··. B8ld, that such change,.whileit might the. rIsks of employment from one track to another, dId not increase s\lch risks;' .
At Law. On motion for new ·This action'was brought by Naylor, the plaintiff, as administratrix, to recover damages for the death of her intestate, who W8.$ an engineer in the employ of the New York.Oenttal&Hudson River Railroad. W. a. Holbrook, for plaintiff.' W. H. Adam8" for defendant. "
.'
;
'WALLACE,J. The proximate cause of the accident which resulted in the death of the plaintiff's intestate was the of a switchman, the of the deceased engineer, in misplacing a switch which connected the main tracka' ofthe defendant's road with a side track, whereby the engine in charge of the deceased ran off. the track, causing The change in the running direction of trains on the two freight tracks, made by the defendant four months did not crease the risks of the employment in which the decEl$sed was .engaged, although 'it may have shifted the risk from one track to the other when the direction of the trains were such that they would run against the switch-head instead of the switch-heel. The result was that a risk which had formerly been encountered when a train was moving westward, was encountered only when the train was moving eastward, and vice ver8a. But the c!>nnecting the side track with the. majn tra,cks is wholly immaterial, because it did not enter eventually into the cause of the accident. If of the deceased bad not. against the switch-head it would have run oft' the track, because the switch was luisplaced. The further fact that ,the target at the switch,was painted green is reliedupOD" and the argument is advanced thatlf jihad been of a red. color it wotlld have been more readily distinguishable at a distance, and might havel)eenseen by the dece8.$ed in season to,enable him to stop the engine before it left the track., . The deduction is wholly conjectural; and the fact, standing alone, would hardly authorize a jury to indulge such an inference. But wbenitw8.$ shown that the ta.rget was painted the sameeolbr as that of all. the'defendant's that all had been green for two years previously, and that during all that time the deceased had been engaged in the same employment,' the color of the target must be treated as of no signifiCance. Its color must be assumed to have been known by tbe deceased. He wns especially iQterested in observing 'the targets, and must have been aware of any increased risk in eonsequ6tlceof their color.. as competent to judge of the matter as any officer of the defendant, and is presumed to have accepted the hazard one of the ordinary rif?ks incident to his employment· . The. instruction upon the 'trial directing a verdict for the defendant was right. . The switchman and,the deceased engineer were not only coemployes pfthedefendant, but they were each engaged in duties which bronp;ht'them .to work at the same place, at the same time, under eircUlnslahces in which the carelessness of one might be fatal to the safety
MISSOURI PAC. RY. CO. V; TEXAS & P. RY. CO.
803
of the Randall v. RiJlilroadOo.! 109 U. S. 478, 3 Sup. Ct. Rep. 322. In Quinn v. Lighterage 00.,23 Blatchf. 209,23 Fed. Rep; 363, the general question of the employers' liability'in this class of cases was considered, and the views adopted there are decisive here. Motion for a new trial is denied.
MtssOURI PAC. Ry. Co. 11.
TEXAS
& P. Ry. Co., (PRICE, Intervenor.)
(Oircuit Oourt, lJJ· .D. Louiaiana. January -,1888.) 1: REF'ERENCE-REPORT-PRESUMPTION IN FAVOR OF.
In a claim for damages for personal injuries, the evidence WaBSO conflict· ing that, in order to reach a tinding of the real facts. some testimony must be rejected as untruthful. Held that, unless plain error was established, the finding of the master should be as conclusive as the verdict of a jury. In a claim filed by an em.ploye of defendant for damages for personal injuries; sustained while in the line afhis duty, the master allowed claimant the amQunt of his expenses and wages while laid up, and general damages amounting to $350. Held, that as the master found that claimant was injured and had incurred expenses, the amount allowed was not excessive.
DAMAGES-PERSONAL INJURiES-AMoUNT.
SAME-PERSONAL INJURIEs-INADEQUATE DAMAGES.
In a claim for damages filed by an employe against defendant for injuries sustained while in the line of his duty. the master allowed claimant his wages and expenses incurred, and general damages, amounting in all to $350. Held that, as'thtl case showed clearly that the intervenor attempted to set up and prove fictitious injuries for the purpose of enhancing the claim for damage., there was no ground for him to claim that the court should go behind the master's report and increase the allowance.
On Exceptions to Master's Report. Sam Price, intervenor, filed a'claim against the receivers of the Texas & Pacific Railway Company for damages for personal injuries sustained while in their employ. The matter was referred to J. R. G. Pitkin, as master, who reported to the following effect: .. That it appears that about 7: 30 P. M. of the fifteenth day of November. 1886, and near lJawkings, Texas, the complainant, a section hand in the employment of said receivers, and while one of a crew of six, and in discharge Qf duty incident, to that service, upon a moving push car in rapid progress, down grade, and under a foreman's orders, pursuant whereto he sought, with a fellow-hand, to arrest that vehicle at a certain locality, pressed against its left front wheela stick held half a foot above the rail, and through a hole cut for said purpose in the car floor, a plank whereof, not nailed as is customary. and against which the stick bore, was SUddenly thrown up, causing said brakestick to slip, both servants to be thrown in front of the moving cal', and complainant to be run over in the encounter, and to sustain injuries that disabled hiIll for a month from railway work, and for a week from leaVing his domicile, within which he walked about, unassisted, on the day after said mishap. That said injuries have subjected him to considerable pain, mental and physical; to charges for medical care aM drugs in the sum of $37.50; to a loss of wages, during his prostration. in the sum of $35; and to an alleged shorten-
