818
FEDERAL REPORTER,
vol. 38.
supported by the testimony of the intervenor himself, one Spicer, a ,switchman, and the boy, Warner, who ,claims to have been in the car second behind the locomotive, and to have been looking out of the window at the time that the intervenor met with his accident; and is corroborated by the proved admissions of the conductor, and the failure of the defendant to produce or account for the engineer in charge of the outgoing locomotive. The theory of the defendant is that the intervenor met with his accident while the train was being made up in the yard of the company at Gouldsborough, and while the conductor was absent at the dispatcher's office to receive orders, or at least· before he had taken charge of the train. The master has found that the intervenor's witnesses are to be believed, and that the main witnesses of the defendant company are to he discredited. The conclusion that I reach after a full examination of all the evidence is that the intervenor's evidence, supported as it is by the opinion of the master, preponderates in: the case. At the same ti:me I dissent . in toto from the claim of the intervenor, apparently acquiesced in by the master, that the testimony of the. two main witnesses, Nash and Qtss, for the defendant, is. collusive and falae. The case shows that the ordinary way in which the h\ll.!iness is done at Gouldsborough, after crossing the river on the the conductor to go at once to the patcher's office, some distance ,up the yard, to obtain and receipt for orders; l;\pd that, while this .is being done, the train is made up under the yard-master's orders, the cars composing the train. are switched by a yard-engine to .their' properplace$, and, when the train is made up, the engine that is to, haul i,t .is attached; it being the duty of the porter or brakeman, as intervenor was, to attach and properly tie. the bell-cord as soon as tpe outgoing engine is .. The of Nll.Sh and :CltSS is to the the accident to the intervenor occurred before or at the time the outgoing engine was attached, and not after the train was fully made up and turned overby the yard-master to the conductor. It is corroborated by the fact 'that no explanation whatever is given as to J.w.hat the. intervenor was doing, and why 4e did tie the bell-cord while the conductor was obtaining orders, and by statement .of the intervenor as to the manner in which he received his hurt, taken down by Dr. Kearney, in the presence of Dr. Postell, atPlacquemine, where the intervenor was first examined by a surgeon; and it is further corrobOrated by the absence of any motive on' the part of Cassand Nash to swear falsely,-the idea. that motive is presumed because they were railroad employes being rejected as absurd. ,.:: The damages allowed are based upon the theory that the intervenor will never:fully recover the USe of his arm. .The testimony on this sub:ject is not sufficiently clear alid oonelusive. Of course' it is hardly to be expected that, in the ordina'rycourse of healing such an injury,' it will ,be cured pending the of the case, and in the determination ofthe amount of damages to be recovered from the' railway, if the' injury is permanent, the sum allowed by the master is not excessive; but, lfCiltherwise,' the sum of $1,500 is:ample. 'The intervenor may have tID
NlJ:WMAN V.ALABAMA G. S. It. CO.
819
order recommitting the case to the special master to take additional expert medical evidence as to the permanency of intervenor's injury; or an order confirming the master's report as to the liability of the defendant company! allowing damages in the sum of 81,500, as he may elect, within five days from this date. .
NEWMAN 1'. ALABAMA
G. S. R. Co May 24,1889.)
{Circuit (Jourt, 8. D. Mi88188ippi, E. D.
At Law. A9tion by Louis T. Newman for damages for personal injuries. . Miller, Smith Hush, for plajntiff. FeweU, Watki'll.8 & Brahan and John C. McMartin, for defendant. HILL, J. This is an action brooght by the plaintiff against the defendant for alleged injuries received by him while a passenger on defendant's train, caused by the negligence of defendant in not keeping its railroad track in sufficient repair.· Buch is the substance of plaintiff's declaration, and to which the defendant has interposed the plea of the general issue t and upon which t by stipulation, the questions of fact as well as of law are submitted to the court, the finding of the court to be in lieu of the verdict of a jury. The. proof shows that the plaintiff was a passenger on defendant's train, and that he had paid his fare, and had a ticket from Chattanooga to Vicksburg, and had also paid the additional fare demanded, and was in the Mann boudoir car,-one Qf the cars. in said traiI),; that by reason of the breaking of one of the rails on tIle track said was thrown from the track, and plaintiff was thrown from his Bellt or place of :repose, and that by some sharp substance a deep cut or wound was made on the right $jde of his face, which severed one of the arteries, or perhaps two of them, from which a lllrge quantity of blood flowed, llim,prQducing. temporary from which greatly