wards and forwards after the time of the accident or not; that the car was still loaded with oil; that chalk marks 'defective brake' were on the car when it got into the Maryland avenue yard; that he did not know how the car got 76] there; that he went with Mr. Downs to examine this car at about half past six or seven o'clock in the evening; that he examined the car with the defective drawhead shortly after the accident; that he saw the tools lying around there which were used for the purpose of fixing cars, and that he examined the draw-signal with his lamp by swinging it; that head and saw what it needed; that he told the men to look out for him, and he got under the car and did the work; that it took him about three minutes." On cross-examination, he further said "that he did not know that the brake which he examined was the brake on the car connected with the accident, except that he was told that that car was the cause of the accident; that he did not know it as a fact; that Robert A. Brown was his superior officer —‘our leader'—or foreman in the yard; that he, witness, first discovered the chalk mark 'defective brake' when he went to examine the car; that it was marked on the end of the car, and on both sides."

After the train was cut, and space left between the cars that were pulled away and the defective car, Brown had no reason to believe that the former would be allowed to run back upon him. On the contrary, when the train was cut he had the assurance of the conductor that the cars pulled ahead would be left standing where they were after the cutting of the train had been accomplished.

The conductor, a witness for the defendant company, gave this account of the affair: “He was in the employ of the defendant, the Baltimore & Potomac Railroad Company, as conductor in the freight yard in this city; had been so employed by the defendant in this freight yard for about twelve years; was there at the time of accident, running with the shifting engine No. 327; that on the night of the 17th of March, 1887, the night of the accident, he was engaged in the 'Jersey yard' in shifting cars; that they got down to the Jersey yard about 9:55 o'clock in the evening, and took down with them about twenty-five cars, which they first shifted around where they belonged; that it took them about half an hour to dispose of those cars; that they went over on to the other side of the yard to shift the fast freight which was coming in from the North; that said train 77] was brought in by engine No. *307 and placed on No. 1 track; that said fast freight train arrived after they got down to the Jersey yard about ten or fifteen minutes; that they went to work upon said train to get out such cars as were to go South on the fast freight; that there were not over six cars in the said freight | train to go South; that the cars which were for Washington were put over on another track; that then Robert A. Brown, the deceased, told them that they had a broken bull-nose down there which he wanted to fix; that he asked the witness to pull the cars apart, and witness told him that he would go down there and pull them apart; that he went down there and pulled the cars apart; that witness told deceased he was not going to shift any more of those cars: that said cars were pulled apart to a distance of

about forty feet; that brakeman Hillary pulled the pin and uncoupled the cars in the first instance, aud that the witness ordered the cars to be cut loose; that at that time he was talking to Robert A. Brown, who was stauding right where the cut was made; that after the pin was pull the witness (Phillips) gave the signal to pull ahead, and then went up towards the engine; that he stopped the engine when Robert A. Brown, the deceased, said, "That will do,' by giving the engineer the shut-off thereupon the engineer (Smith) called to him, and he went up towards the engine; that the engineer then said he had no more water to do any shifting with, and I told him I hadn't anything to do, and they were not going to do any more shifting on that train, and and I asked him to take a load of stock from the lower end up to the warehouse and stop at Sixth street and get water. He said: 'Well, I will try it.' So I said to brakeman Teiling, when I stopped talking to the engineer, 'How is it?' He said, 'All O. K.' I said, 'Go up and set this brake. He got up and put it on. I told Mr. Brown, after I pulled the cars apart, that I was going to leave them standing there."

There was evidence tending to show that a full crew, with a shifting engine, in a yard is six men, an engineer, a fireman, a conductor, and three brakemen; and that on the night Brown was killed there were only two brakemen on the train. *There was also evi- [78 dence bearing upon the question whether the deceased was guilty of contributory negligence in not displaying a blue light while repairing the defective draw head, in conformity, as the defendants claimed with the printed rules of the company.

Mr. Enoch Totten, for plaintiff in error: A corporation must necessarily act through its agents it was the duty of the plaintiff in error to employ a skilled man, or a man reputed to be skillful in the business, to inspect and repair its cars. When it had done this it had performed its whole duty as master.

Shearman & Redf. Neg. $ 78-84; Whart. Neg. $ 175, 182, 184, 186, 188, 818.

The deceased was guilty of negligence. He carelessly placed himself in a place of danger, and the consequences cannot be charged to the defendant.

Southern Pac. Co. v. Seley, 152 U. S. 145 (38: 391); Elliott v. Chicago, M. & St. P. R. Co. 150 U. S. 245 (37: 1068); Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 191 (30: 1116); Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697 (24: 542); O'Rorke v. Union Pac. R. Co. 22 Fed. Rep. 189; St. Louis & S. F. R. Co. v. Schumacher, 152 U. S. 77 (38: 361).

The plaintiff's intestate was employed and it was his duty to discover the disordered condition of the brake and to repair it, and his failure to do so was his negligence, and the plaintiff cannot recover. Dewey v. Chicago & N. W. R. Co. 31 Iowa, 373.

It seems to be the law that if some other employe of the defendant had been injured by reason of this car inspector's neglect, the company would have been liable on the ground that this person was the representative of the master

appointed to perform the master's duty, and not a fellow servant.

Northern Pac. R. Co. v. Herbert, 116 U. S. 642 (29: 755); Tierney v. Minneaplois & St. L. R. Co. 33 Minn. 311, 53 Am. Rep. 35.

A corporation can only perform its duties by means of agents, and when it has employed a skillful man for a particular duty, it has done all the law requires.

Mackin v. Boston & A. Railroad, 135 Mass. 201.

Allen v. New Gas Co. L. R. 1 Exch. Div. 251; East St. Louis Packing & R. Co. v. Hightower, 92 Ill. 139; Chicago & A. R. Co. v. Platt, 89 III. 141; Dewey v. Chicago & N. W. R. Co. 31 Iowa, 374; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 564, 67 Am. Dec. 312; 2 Rorer Railroads, pp. 1200, 1201, and note; Painton v. Northern Cent. R. Co. 83 N. Y. 7; DeGraff v. New York Cent. & H. R. R. Co. 76 N. Y. 125.

The language of the court must necessarily have created the impression upon the minds of the jurors that the number of children, the condition in life of the family, and the sex of the children were proper elements for their con

Pennsylvania Co. v. Roy, 102 U. S. 451 (26:

141),

Although it is ordinarily the duty of railroad companies to furnish reasonably safe appliances, cars and machinery for their employes, and in default thereof they are liable for in-sideration in estimating damages. juries resulting from such default, yet this rule of law does not apply to cases where employes and servants of railroad companies are engaged in repairing damaged cars. By his employment to handle damaged cars the deceased assumed the risk incident to the enhanced danger of this service, and the law presumes that he was paid for it.

Yeaton v. Boston & L. R. Corp. 135 Mass. 418; Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 189 (30: 1114); 2 Rorer, Railroads, 1215; Chicago & N. W. R. Co. v. Ward, 61 Ill. 130; | Flanagan v. Chicago & N. W. R. Co. 45 Wis. 98; 1 Shearm. & Redf. Neg. § 185; Flanagan 7. Chicago & N. W. R. Co. 50 Wis. 462.

If this accident was caused by the carelessness of the trainmen in charge of the work of switching cars in the yard, then the plaintiff cannot recover, because such trainmen were fellow servants of the deceased.

Randall v. Baltimore & O. R. Co. 109 U. S. 478 (27: 1003); Baltimore & O. R. Co. v. Baugh, 149 U. S. 368 (37: 772); Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 189 (30: 1114); Quebec SS. Co. v. Merchant, 133 U. S. 375 (33: 656); Rohback v. Pacific Railroad, 43 Mo. 187; Wood, M. & S. 844 et seq. and notes; Bunt v. Sierra Butte Gold Min. Co. 138 U. S. 483 (34: 1031); District of Columbia v. McElligott, 117 U. S. 621 (29: 946); Murphy v. New York Cent. & H. R. R. Co.11 Daly, 122; 1 Shearm, & Redf. Neg. ES 184 et seq. and note; Baltimore Elevator Co. v. Neal, 65 Md. 438; Besel v. New York Cent. & H. R. R. Co. 70 N. Y. 171; Smith v. Potter, 46 Mich. 258; Columbus & X. R. Co. v. Webb, 12 Ohio St. 475; Mackin v. Boston & A. Railroad, 135 Mass. 201.

A railroad company receiving a loaded car from another company is entitled to presume that such car had been properly constructed of suitable material, and had passed the inspection of someone of ordinary skill in such matters, and was reasonably fit for the use to which it was devoted when received.

Ballou v. Chicago, M. & St. P. R. Co. 54 Wis. 267, 41 Am. Rep. 31; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212; Smith v. Potter, 46 Mich. 258; Baldwin v. Chicago, R. 1. & P. Co. 50 Iowa, 680; Davis v. Detroit & M. R. Co. 20 Mich. 105, 4 Am. Rep. 364.

The court, on the trial, having made the case turn on the question whether the brake set by Teiling was or was not out of order, it was essential to show knowledge in the defendant, or that knowledge might have been obtained by the use of reasonable diligence, of the defect in the brake which caused the injury. Without this there cau be no recovery.

Mr. Franklin H. Mackey, for defendant in error:

If upon any construction which the jury is authorized to put upon, or auy influence they can draw from the evidence, the conclusion of negligence can be justified, the question of negligence must be left to the jury.

Sioux City & Pac. R. Co. v. Stout, 84 U. S. 17 Wall. 657 (21: 745); Weightman v. Washington, 66 U. S. 1 Black, 39 (17: 52); Holladay v. Kennard,79 U. S. 12 Wall. 254 (20: 390); Randall v. Baltimore & O. R. Co. 109 U. S. 478 (27: 1003).

Questions not made on the trial or presented to the court below for decision cannot be entertained by this court.

Barrow v. Reab, 50 U. S. 9 How. 366 (13: 177): Morril v. Jones, 106 U. S. 467 (27: 268); Insurance Co. of Valley of Virginia v. Mordecai, 63 U. S. 22 How. 117 (16: 331); Klein v. Russell, 86 U. S. 19 Wall. 463 (22: 124); United States v. Ferrary, 93 U. S. 625 (23: 832); Wheeler v. Sedgwick, 94 U. S. 3 (24: 31); Wood v. Weimar, 104 U. S. 795 (26: 781); Wilson v. McNamee, 102 U. S. 574 (26: 234); Edwards v. Elliott, 88 U. S. 21 Wall. 532 (22: 487); Springer v. United States, 102 U. S. 593 (26: 256); Rogers v. Ritter, 79 U. S. 12 Wall. 320 (20: 418); The Georgia v. United States, 74 U. S. 7 Wall. 38 (19: 123).

If damages result to an employe because of the want of reasonable rules for the management of its railway business, the company is liable.

Abel v. Delaware & H. Canal Co. 128 N. Y. 662; Wild v. Oregon Short Line R. Co. 21 Or. 159; Smith v. Baker (1891) App. Cas. 325; Williams v. New York, L. E. & W. R. Co. 49 N. Y. S. R. 568.

A defective system or mode of conducting the practical workings of a railroad may be actionable if injury result therefrom, though the immediate damage should be caused by the act of a fellow servant.

International & G. N. R. Co. v. Hall, 78 Tex. 657; Ford v. Lake Shore & M. S. R. Co. 12 L. R. A. 454, 124 N. Y. 493.

The accident would not have occurred had a full complement of brakemen been supplied to the train instead of its being, as was testified, short of brakemen.

Booth v. Boston & A. R. Co. 73 N. Y. 38, 29 Am. Rep. 97; Flike v. Boston & A. R. Co. 53 N. Y. 551-554, 13 Am. Rep. 545; Northern Pac. R. Co. v. Herbert, 116 U. S. 648 (29: 758); Hough v. Texas & P. R. Co. 100 U. S. 213–218 (25: 612-615).

As a matter of law, the instruction was an actual limitation upon the rule of liability and a relaxation of its rigor in favor of the defend-after the death of the party injured. § 3. That

This suit was instituted under the Act of Congress approved February 17th, 1889, 23 Stat. at L. 307, chap. 126, providing: "§1.ive at the time of the accident, and that by the That whenever, by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person, or corporation, and the act, neglect, or default is such as would, if death had not en sued, have entitled the party injured, or, if the person injured be a married woman, have 83]*entitled her husband, either separately or by joining with the wife, to maintain an action

the cars from moving, or at least would have tended to retard such movement so as to have given sufficient time to notify Brown of his danger and to have enabled him to escape, then if the jury believe from the evidence that the brake was not in good order at the time of the accident, and, further, that the defendant by the exercise of reasonable care could have known of its defective condition, their verdict must be for the plaintiff."

Two objections have been made by counsel in this court to those instructions.

The first one is that the railroad company employed the deceased himself to examine the brake in question, and to repair it if it was not in proper condition: that if the defect was chargeable to the negligence of any one it was to his negligence; and that the above instruc-ple of law. But we need not put our decision tions ignored the questions of his contributory negligence.

to the injury directly? And if so, the plaintiff could not recover. If so, he could recover." *The next objection urged by the defen-[86 dant, in support of its second assignment of error, is that the words "as far as possible," in the first of the above instructions, imposed upon the railroad company a higher degree of care in selecting and keeping in order its appliances and machinery than the law requires. It may be observed that the objection to the instruction containing the particular words complained of was general in its nature. The instruction embodied some propositions of law to which no objection could be properly made, and it was the duty of the defendant to point out, specifically, the part of the instruction which it regarded as announcing an erroneous princientirely upon this ground; for it is clear that the jury could not have been misled by the There was no evidence whatever tending to use of the words "as far as possible." The show that Brown was guilty of negligence in instruction in which those words are found not having discovered, immediately upon the distinctly informed the jury that the law imarrival of the train, or before he was killed, posed upon the company the duty of exercising that the brake was defective or insufficient. "reasonable care and caution.' And in its The proof did not show at what time it became charge to the jury the court said: "Was that 85]defective, or that the car on which it was brake in proper reasonable condition? If it placed had ever before been in Washington. was not in a proper, reasonable condition, did As soon as he observed a defective drawhead in the cars roll back in consequence of that inone of the cars-which was soon as the train firmity? Was the accident traceable to that? arrived at the company's yard-he set about to I will say here, gentlemen, that if you should repair it, and while engaged in that particular be satisfied, from the evidence in this case, work was killed. He had, therefore, no op- that this brake was in a reasonably good conportunity, after the train reached the yard, to dition, in good ordinary repair, and there was investigate the condition of the brakes, and, nothing wrong about it, then the plaintiff can consequently, the issue as to the defectiveness not recover, because that would end the case.' of the brake in question was made by the Again: "So you see, gentlemen of the jury, court to depend upon the inquiry whether due the only question, so far as the negligence of care was taken by the railroad company, re- the defendant is concerned, is, was the brake presented by agents or employes other than defective, out of order, not in reasonable reBrown, in providing proper appliances on its pair, not reasonable for the occasion, and if And that was the theory upon which not, was such fact the cause of the accident, the company itself proceeded in its defense, as or did it materially or directly contribute to it ?" is apparent from one of the instructions asked Taking the instructions and the entire charge by it in these words: "Unless the jury shall of the court together, it is manifest that the be satisfied from the evidence that a defect injury understood the words "as far as possible" the brake which was set by Teiling on the stock-if they thought at all of mere words-to car just before the accident was the sole cause mean "as far as possible," exercising reasonable of the injury to Robert A. Brown, the plain-care and caution. tiff's intestate, and that said brake was in such In United States v. Conklin, 68 U. S. 1 Wall. defective condition at the time the said stock 644, 654 [17: 714, 717], Mr. Justice Davis, car was by the defendant put into its train, the speaking for the court, well observed that "a plaintiff cannot recover, and the burden of nice criticism of words will not be in [87 proof is upon the plaintiff to show, by evi- dulged when the meaning of the instruction is dence satisfactory to the jury, that said brake plain and obvious, and cannot mislead the was in such defective condition before said car jury." And in Evanston v. Gunn, 99 U. S. 660 was by the defendant put into the said train." [25: 306], Mr. Justice Strong said: "Sentences It is not an objection to the instructions given may, it is true, be extracted from the charge, on motion of the plaintiff that they were silent which, if read apart from their connection, on the question of contributory negligence. need qualification. But the qualification were The defendant did not ask any specific instruc- given in the context, and the jury could not tion on that point. Nevertheless the court possibly have been misled." And in Flanders when it charged the jury, said, upon that sub-v. Tweed, 83 U. S. 16 Wall. 504, 516 [21: 389, ject, all that was necessary: "Make up your mind, first, within the instructions of the court, was this defendant negligent; was that a bad brake; if it had been a good one, would it have held this train? If you say the brake was all right, that ends the case. If you say that it was not all right, and that a good brake would have held the car, then the next ques tion is, was the plaintiff's intestate himself negligent, imprudent, or careless, contributing

cars.

392]: "Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point explained." See also The Sybil, 17 U. S. 4 Wheat. 98 [4:524].

What the court said to the jury, in respect of the point now under consideration, was in harmony with the principles announced in Hough v. Texas & P. R. Co., 100 U. S. 213,

tion whether the brake was defective, and whether that defect, if found to be the cause of Brown's death, could have been discovered by the exercise of due care.

4. The fourth assignment of error was the refusal of the court to give the two instructions asked by counsel for the defendant in respect to the degree of care required as to foreign *cars." The instructions referred [89 to are those above given.

218 [25: 612, 615], where it was said that a railroad corporation was under an obligation "to provide and maintain in suitable condition the machinery and apparatus to be used by its employes-an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered." Again, in the same case: "To guard against the misapplication of these principles, we should say that the cor poration is not to be held as guranteeing or The first of the two instructions asked by warranting the absolute safety, under all cir- the defendant, so far as it related to this subcumstances, or the perfection in all its parts, ject, was properly refused because it restricted of the machinery or apparatus which may be all liability of the defendant for the defective provided for the use of employes. Its duty in brake to the time when the car on which it was that respect to its employes is discharged when, place was put into its train; in other words, as but only when, its agents whose business it is the court below well said, if the brake was plainto supply such instrumentalities exercise due ly shown to have become broken while on the care as well as in their purchase originally as trip from Baltimore to Washington, there in keeping and maintaining them in such con would, according to the defendant's instrucdition as to be reasonably and adequately safe tions, be no liabilily whatever upon it for an for use by employes.' See also Northern Pac. injury arising from the use of the defective R. Co. v. Herbert, 116 U. S. 643 [29:757]; Wash-brake after the car reached its yard in the latington & G. R. Co. v. McDade, 135 U. S. 554, ter city. That view cannot be approved. 569 [34: 235, 240].

The question as to the duty of a railroad corporation to take due care that foreign cars hauled by them shall be in such condition as to be safely handled by its own employes, was carefully considered by the court below. Mr. Justice Hagner, after observing that the great through trains, especially of freight cars, are composed of cars belonging to different roads, the proportion of such cars belonging to the particular road over which they are passing being very small, said: "They come from all portions of our country, and often from Canada and Mexico. They are transported along each successive road for hire, and only for that consideration. The employes of such road are obliged to handle every car in the train in the same manner, without respect to its ownership, and are exposed to the same dangers from defects of construction or mechanical appliances that may attend the management of the cars belonging to the road that employs them. It would be most unreasonable and cruel to declare, that while the faithful workmen may obtain compensation from a company for detective arrangement of its own cars, he would be without redress against the same company if the damaged car that occa sioned the injury happened to belong to another company.'

3. The third assignment of error is that the case was tried on the theory that the accident was attributable to a defective brake, contrary to the case made by the declaration. We do not find in the record any specific exception 88 Jupon which this assignment is based. But if there were one, it could not avail the defendant. It was alleged in the declaration that by reason of the negligence and default of the defendant, its servants, agents, and employes," the car on which the deceased was working "was run into by another of the defendant's cars whereby the plaintiff's intestate, by collision of the said cars, was so crushed and injured that death immediately followed." Whether these allegations were or were not sufficient to allow proof that the collision was the result of a brake so defective that it could not control the cars which ran back against the deceased and killed him, we need not stop to consider, because both parties asked instructions upon the theory that the jury were to inquire as to the defectiveness of the brake. An instruction asked by the defendant, and which is given above, involved the inquiry by the jury whether the defectiveness of the brake, if it existed, was the sole cause of Brown's death. Another instruction asked by it assumed that the condition of the brake was The same question arose in Gottlieb v. New a matter to be inquired of by the jury. That York, L. E. & W. P. Co. 100 N. Y. 466, which instruction was as follows: "If the jury shall was an action by a brakeman to recover for find from the evidence that the injury to personal injuries received by him *while [90 Robert A. Brown resulted solely in conse he endeavored, in obedience to orders, to couple quence of some defect in the brake set by two cars that had broken apart in the night Teiling on the open or stock car next to engine time while under way. It appeared that the and tender, and that the said stock car was not cars were not provided with proper bumpers, the property of the defendant, but belonged to and the absence of such bumpers was another railroad company, had been on the cause of the injuries inflicted upon the brakesame evening and a short time prior to the ac- man. The court of appeals of New York cident brought to the defendant's yard, in said: "The defect was an obvious one, easily Washington, in a freight train, with the brake discoverable by the most ordinary inspection, in such defective condition, then the fact (if and it would seem to be the grossest neglithe jury shall so find the fact) that such in-gence to put such cars into any train, and espejuries did so result cannot be considered as evi- cially into a train consisting of cars of different dence to support the charge of negligence gauge. But those two cars did not belong to against the defendant, and the defendant is en- the defendant. They belonged to other comtitled to the verdict." So that no error was panies, and came to it loaded, and it was committed in submitting to the jury the ques-drawing them over its road to their destina

the