716
" I'EDERAL' REPORTER.
McCORMICK, J., (charging jury.) This action is prosecuted to enforce the penalty provided for in the section of the law of the United Str.t.es for the protection of the Indians: "Every person who drives or otherwise conveys any stock of horses, mules, or cattle to range and feed on any land belonging to any Indian or Indian tribe without the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock." It is admitted that the defendant drove 1,200 head of cattle into the Comanche, Kiowa, and Wichita Indian reservation, and that said ellttle had been so on the lands of said Indians for at least two days and a half, subsisting by grazing at will along the route they wore traveling, or, if not at will, at least being allowed to graze for their subsistence for that time. The statute, as I construe it, is not limited to the meaning to rangeperm!Ulently or for any long period or an indefinite period of time tograze, but the offense is complete when they are so driven and pertQrange and one day. It is not disputed that there is a fixed ,trail well known to the defendant (as he testifies on the stand) through these lands of the Indians, in which persons have permission to drivecattlej but the defendant's cattle were not being driven on this trail, and it is no defense to this action that, by reason of inclosures or other obstructions, on the Texas side of Red river, the defendant could not enter the Indian lands on the permitted trail. He could not make a trail of his ownfrom some point where he chose to enter the Indian lands without permission, even to the nearest accessible point on the permitted trail, without incurring the penalty. There being no dispute about the facts of the case, you are instructed to return a verdict for the plaintiff, (the United States) for $1,200.
v.
CoRNET.SON.
(Olrcuit Oourt, D. South (Jm'olina.
April 9, 1888.)
1; MA"TER AND SERVANT-DEFECTIVE ApPLIANCES.
Amfister is bound to provide safe machinery, and keep it in safe order; not . the best possible machinery, or in the best possible order.'
2. SAME-EMI'r.OYMENT OF ClIII,DREN. In the use of machinery, a maSter is bound to exercise ordinary care; and in the case of the employment of a child a higher degree c" care is required than 1 If tho machinery furnished bya master to his servant,is sound, well made, and kept in repair, hc will not be liable for an accident occurring to an employe when the only safer kind used for the same purpose. ground allegca ii>' that. there is a better Richards v. Rough, (MICh.) 18 N. W. Rep. 71:>5; Sweeney v. Envelope Co., (N. Y.) 5 N. E. Rep. ans; ,Pierce v. Cotton Mills, (Ga.) 4 S. E. Rep. 381; Delaware River Works v. Nuttall, (Pa.) 13 'AU, Rep. 115. A master is not bound to adopt the safest method of working. Naylol'v. Railway, (Wjs.) 11 N. W. Rep. 24; Hickey v. Taaffe, (N. Y.) 12 N. E. Rep. 286. And his liability for injuries to his servant for defective arrangements is not that' of an insurer or guarantor, The question js one of reasonable care and diligenlle. Batterllon ". Railway Co. (Mich.) 13 N. W. Rep. 508, and 18 N. W. Rep. 584; Railtomi Co; v. (Kan.)7 Pac. Rep. 204i. Co. v. Hughes, (Pa.) 13 Atl. Rep. 286; Bowen v. Railway Co., (Mo.) 8 S, W. J:l.ep. 230.
ROBERTSON fl. CORNELSON.
717
in the case of an adult, especially in seeing that he does not assume risks without the scope of his employment.
8.
SAME-NEGMGENCE OF VICE,PRINCIPAL.
Where it is unusual and dangerous to clean the machinery of a mill before the stoppage of the mill. the master is responsible for the negligence of his foreman in requiring a minor in his employ to clean the machinery before the stoppage of the mill, although such work was within the scope of his employment. 1 Where an employe, a minor, while disobeying the orders of his foreman, assumes unusual dangers, and is injured before his action could, in the exercise of proPer care, be discovered and stopped, the master is not liable. In estimating damages for personal injuries, the jury may consider plain· tiff's age, his station in life, the character of the injury, the effect it has on his in the future, and his suffering, bodily and mental.
4.
SAME-CONTRIBUTORY NEGLIGENCE.
5.
DAMAGES-PERSONAL INJURIEs-ELEMENTS.
At Law. Action by John E. Robertson against George H. Cornelson, for damages for personal injuries. D. H. Henderson and Claiborne Snead, for plaintiff. IZlar & Glaze and Smythe & Lee, for defendant. SIMONTON, J., (charging jury.) The plaintiff, a boy of 12 years of age, a hand 'in the factory of defendant, had his left hand caught in the gearing ora machine which he was cleaning, and lost his arm. The ques-tions are: Is the defendant liable to the plaintiff for this injury? If s(), what is the measure of his damages? In solving the first question you must inquire: Was the injury caused by a defect in the machinery of the defendant? If so, was this defect occasioned, or did it exibt, by reason of any negligence on the part of defendant in procuring a proper machine, or in keeping it in proper order? He was not bound to procure the best possible machine, nor to keep it in the best possible order. He was bound to gEt a safe machine, and to keep it in safe order. If the machine was defective, was this known to defendant, or could it have been known to him by the exercise of proper care on his part, or on the part of his agents? The kind of care which defendant was bound to exercise was the care which a person of common prudence and of common sense exercises under the same conditions in the same employment. The fact that plaintiff was a child naturally increased the degree of care and caution which would be required in the caRe of an adult, especially in seeing. that he did not assume an unusual risk not within the scope of his ·employment. An adult might assume such risk; a minor COtlld not. The defendant is responsible for the acts and for the knowledge of his ngents. Their knowledge and their negligence are his. In determining these question!:> the burden of proof is on the plaintiff. The jury are not at liberty to infer that either the defendant or his agents
IThe master is responsible for the negligence of a servant who stands as his vicco principal and direct representative, invested with his own authority over inferior servo ants; and the latter, when injured by such negligence, are not· barred by the doctrine of fellow-servant. Faren Y. Sellers, (La.) 3 South. Rep. note; Railroad Co. v. Smith, (Neb.) 36 N. W. Rep. 2S5; Criswell \'. Railway Co., (\IV. Va.) (\ S. E. Rep. 31. As to who are fellow·servants within the rul<> exempting thc master from liability for injuries resultinO' to a servant from thc negligence of a eo-empLoye, sec Wolcott v. Studebaker, 34 Fed. Rep. 8, and note; McMasterv. Railway CO.,(Miss.) 4 South. Rep. 59.
FEDERAL REPQRTER.
were·negligent simply'because the accident occur):ed. Theplllintiff, b.r. preponderance of testimony, must show that the accident· occurred by reason .of the negligence of defendant or his agents, and from no other cause. The jury cannot find the defendant guilty of negligence because the plaintiff, a minor, wRsengaged ina dangerous employment. He was ehgaged in this mill by lind with the concutrenceof his father. He took the risks of his employment,-thenatural and ordinary.risks. But defendant; could not put.him to extraordinary risks outside of his employment.Ifhe did this he would be liableif the injury occurred from it., In this connection, then, you must inquire, for what was plaintiff engaged? Was his employment a general one, to do whatever he was told to do, including cleaning the machines? Or was he employed only o.s a doffer? If it was among his duties to clean the machines, was he doing this under the instructions 'of the foreman when the accident uccurred, before the general stoppage of the mill? If so, and if it was'unusual and dangerous to clean the machine before the general stoppage ofthemill, this would be negligence on the part of the defendant's agent, for which he would be responsible. If plaintiff was not acting under orders of the foreman, but was disobeyinghim, and i(he incurred unusunldanger in this, and. was injured beforc'hisaction would be discO\'ered and stopped, defendant is not liable. H there was no unusual danger in cleaning the machine before the general stoppage, and plaintiff was acting in disobedience of orders, but the accident occurred because of a defect in the machinery, and was not the 'result of ;the disobedience, defendant· is liable. If the disobedience of orders causedtheinjury,and if 1heplaintiff could by proper care have 'been discovered; and could have been stopped in his disobedience in time to have prevented the accident, inasmuch as he was a young child. the defendant is liable. If the accident occurred by the unauthorized act of the plaintiff, or by his' own negligence in the course of his employ'ment, defendant is not liable. Apply the facts as stated in the testimony to these principles, and find your verdict. .If, upon the whole testimony, you solve it in favor of the plaintiff. what is the measure of damages? You,:eannotfind vindictive or punitive damages. Nothing baa been developed 'in the case which will justify this. You must compensate the plaintiff considering his age; his station in life; the character of the injury; the effect it has on his efficiency in the future;. his suffering, bodily and mental. The sum you must determine. You cannot go beyond the amount stated in the complaiilt. NOTE. See Gunter y. Manufacturing Co., 15 S. C. 450; Bridger v. Railroad Co., 25 S. Hough v. ,Railway Co., 100 U. S, 213; Railway Co. v. CumrniDO"s, 106 U. S. 700, 1 Sup. at: Rep. v.Herbert, 116 U. S. 642, 656] 6 Sup. Ct: Rep. 590J. Railway CQ.v. Ross, 112 LVS. 817. 5 Sup. Ct. Rep. 18!i Stee.m-ShlP Co. Y.Carey,119 u. S. 245, 7 Sup. Ct. Rep. 1360; Railroad Co. v. Fort, 17 wall. 558.
BOBOSTELLI II. NEW YORK, N. H. 4: 11. B. CO.
119
RoBOSTELLI 'l1. NEW YORK, N.
H. &: H. R. Co.
(Circuit Oourt, 8. D. NtiUl York. April 17.1888.) 01llATH BY WRONGFUL
Where the complaint demands judgment "in the sum of $5,000, with the costs of this action, " and a verdict is returned for plaintiff for $5,000 damages, the plaintiff may waive the interest from the date of decedent's death, under Code Civil Proc. N. Y §I 1904, providing that "When final judgment for the plaintiff is rendered the clerk must add to the sum so awarded interest thereon from the decedent's death, and include it in the judgment.·
At Law. On motion for judgment. Chas.;H. Noxon, for plaintiff. Robert D. Benedict, for defendant. WHEEI..ER, J. This action is brought upon section 1902 of the New York COde of Civil Procedure for an alleged wrongful act which caused the death of the plaintiff's intestate. The section provides that such administrator "may maintain an action to reCOver damages for" such wrongful act. In her declaration or complaint the plaintiff set out her cause of action' upon that statute, and concluded: "Wherefore plaintiff demands judgment against the defendant in the sum of five thousand dollars; with the costs of this action." The answer wasinsubstance'a de-. nial of the complaint. Upon trial on these pleadings the jury returned a verdict for the plaintiff to recover $5,000 damages. Section Hl04 of the same· COde provides that "the damages ll-warded to the plaintiff may be such a sum not exceeding five thousand dolll\.rs8S the jury" "deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent's death· to the person or persons for whose benefit. the action iilbroughti" and that, "when ·final judgment for the plaintiff ill rendered, the clerk must add to the sum so awarded interest thereon from the decedent's death,and include it in the judgment." The 'Plaintiff has filed a waiver or remittitur of this interest and costs, and moves for judgment on the verdict for $5:.000 damages only. This motion is resisted by the defendant upon the ground that the matterin dispute would not then, "exceed the sum or value of five thousand dollars, exclusive of costs," and the judgment would not be reviewable by the supreme court. Act Feb. 16, 187,5, (18 St. 315i) Railroad v. Bank, 118 U.S. 608,7 Sup. Ct. Rep. 23. The laws which confer upon the' supreme court to review the judgments of this and other courts, and those that leave the judgments final,are equally binding. The limits are Bet in each case by the same authority, and the rights of parties to insist upon the one or the other are equally sacred. This case should be determinE-d in this court in such .manner as to award to the parties their just rights, respectively, according to law, as near as may be, and, when this is done, if the rightto have the judgment reviewed is left by the law to either, it should not by any act of the court betaken awaYi and if by the law it is left final, nothing should be dane by the court to
72Q
FEDERAL REI'ORTER.
:iisturL it. i'he nction is eminently one for the recovery of open and uncertain uamages; they enn only be ascertained by In such actions, plaintiffs have from the earliest times always been limited in. their right of recovery to the sum demanded. Brooke, Abr. 31; Pilford's case, 10 Coke, 117a; Bac. Abr. 2; 1 Chit. PI. 398; Bonner v. Oharlton, 5 139; Burger ". Kortright, 4 Johns. 415; Hemm&nway v. Hickes, 4 Pick. 497; 2 Dam. 578. When a verdict in such a case was rendered for an amount of damages greatflr than the ad damnum, the plaintiff was not entitled to a judgment On the verdict without remitting the excess. If judgment was entered on the verdict without a remittitur of the excess the judgment was erroneous, and reversible. This is shown by the books and cases cited and. many others. Some cases hold that the excess cannot be remitted, and the error corrected, after writ of error brought; and others that the judgnlent can be saved from reversal in that manner. Pickwood v. Wright,l H. Bl. 642; Fury v. Stone, 2 Dall. ·184; Hutchinson v. {Jros8ert, itO' ¥ass.251; 1 Sel. Pr.481. All agree, however, that the excess, must be remitted before judgment on the verdict will be regular. This limitation of the right of a plaintiff to judgnlent for nOlllore damages than, are. demanded in thedeclt;tration or complaint inactions for the recovery of unliquidated damages, does not appear to be varied by thill: Code ofProced ure; unless .it is as to the effect ofa judgment on anexcessive verdict without objection. Corning v. Corning, 6 N. Y.97; Sch.ultz v. Railroad 00.,89 N. Y. 242. . HJre the ques!tionismade before judgment; and what the effect would have been if the judgment had been entered up without question is not material. The question iS:as to what judgment is proper now, as the case As the plaintiff has declared or demanded judgment for only $5,000 ,damages, a judgment for more than that amount would be manifestly improper. The intent ofthestatute 011 which the action is foundedappears to be to give damageE\ to an amol1nt not exceeding $5,000 at the time Of the death, and interest after whatever the rlelay of the recovery maybe, So that the judgment entered up. may be for more than $5,000. But when the interest is added, it is made by the express words of the statute a part of the judgment. as much 80 as if the jury were allowed to ·a;dditas a part of the 8um awarded by the verdict. The ad damnma must therefore be made large enough to cover this increase, if the plain,tiff wishe& to have judgment forit. In this case the plil.intiff has waived the,'intereSt; and the statute says that the derk shall add it. This is u. mattel'.of procedure in a common-law, action , and the statute of the state is' madllla· rnle of procedure in this court. Rev. St. U.S. § 914. The defendant argues that this statute is imperative, and that the clerk must ada the iliterest. It is given by the statute for her benefit,and it would ,seem that she might waive it, and not be compellable to receive it if she ;sh<mid so prefer. In the case, In reCocrper, 93 N. Y. 512, the court said thnt it was "very well settled' that a party may waive a statutory, 'l\nd even a constitutional, provision for his benefit." But if the plaintiff must have the interest on the verdict, that should be reduced so that with the interest it will not exceed the ad damnum. There would be no
ALBERT V. ORDER OF CHOSEN FRIENDS.
721
difference between'remitting the interest and remitting such part of the verdict as would leave enough to amount, with interest, to what the verdict now is. Nothing would be gained by requiring the remittitur already entered to be changed. Upon these considerations a judgment on the verdict for $5,000 damages only appears to be th{: proper and only proper verdict to be entered. This condusion makes consideration of whether the plaintiff should be allowed to take judgment on the verdict and remittitur, as a matter of discretion, unnecessary; That the court has that power is unquestioned. Thompson v; Butler, g5 U. S. 694; Inb'Urance Co. v. Nichols, 109 U. S. 232, 3 Sup. Ct. Hep. 120;13ank v. Eedick, 110 U. S. 224, 3 Sup. Ct. Rep. 640; !loyers v. Bowe:t'l/l,an, 21 Fed. Rep. 284. 'There is, however, one consideration which would fa\'or granting that leave. This statute respecting interest was not called to the attention of the court or jury upon the trial, and the case was mllJmitted to the jury as if the amount of the verdict would be all that could be recovered. They might not have found the damages at the time 'Jf the death to be $5,000, or any more than enough to amGunt to that sum now. ,The rlf/niUitur may have left as large a verdict as the ji.lty would have given. In Darrel's Case, YearBook 13 Hen. VII. fol. 16, 17, ill a writ of trespass, the plaintiff laid his damages at 20 On not guilty being pleaded the jury found the damages and costs of suit jointly to be 22 marks, thereupon, BRIAN, .T., said: "Semble que verdit est bon pur 20 markes Ie remnant voide." The ad damnum need not be large enough to cover both' damages and costs, but in that case the court could not tell how much ofthe 22 marks was for damages, nor how much was for costs; therefore the judgment was for but 20 marks. Case, 10 Coke, 117b. Here the statute gives the interest as a part of the damages, but the jury may have considered the same interest as a part of the damages found by the verdict. Motion granted, and let judgment be entered on the verdict and remittitur for $5,000 damages, only.
«pur
(OVr/J'Uit Oourt, lJ. Kentucky. August 23, 1887.)
1.
INSURANCE-MuTUAL BENEFITS-PERMANENT DISABILITY.
The .constitution of a relief fund association provided that a member "permanently disabled from following his or her tisual or other occupation " was entitled to a benefit; and in another section defined such disability liS one which should "permanently prevent the member from following any occupation whereby he or she clln obtain a livelihood." Held, that the words "or other occupation," in the first-mentioned section, could not be held to mean "or other of the same kind:" and the definition in the latter section was con· clusive against one who, disabled from his own profession, had been working at another totally dissimilar one. '.' The laws of a relief fund association nrovided that on notice of the disabil. ity of a member a board of physicians should examine him, lind report to the
2.
SAME-:-PROOF OF G'LAIM.
v.34F.no.9-46