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
826
FEDERALltEPORTER,
vol. 38.
whicl 1.0.1 suffered considerable pain; that considerable time elapsed be-· fore said "Wound was healed and cured; that soon after this accident a clot of blood made its appearance in the right eye,-the one next to the wound,-which to some extent injured the sight of the eye, and that since that time the hearing in the right ear has been impaired. The proof further shows that not long after the accident symptoms usually found in cases of diabetes-meUitus made their appearance in plaintiff, and which continue, and that since the accident plaintiff's health has not been as good as before; that he has expended several hundred dollars in the payment of physicians' hills for the treatment of his wound, and of the disease from which he has been SUffering, and for medicines and board and other necessary purposes while under the treatment of said physicians; and that he has been detained from his businflss, and has not attended to his business asformerly. It is J;lharged that all the suffering and expense to which plaintiff has been subject since the accident have been the result thelleof, and that it caused the disease known as diabetes-mellitus, which, it is alleged, is incurable, and from which plaintiff will have to suffer during the remainder of his life, if it is not shortened thereby. The first quesHoJ) ·is to determine Whether or not the defendant is liable to plaintiff by reason of the carelessness and negligence in not keeping its road-bed and track in sufficient repair. That the accident was the result of the broken rail is admitted, but it is insisted that the defect of the rail, if any, was such as could not be discovered, and that the road-bed and cross-ties were all sufficiently soundjand in good order. The only witness introduced by the defendant on this question is the section boss who had charge of this part of the road, and he testifies that such was the fact, except that one of the cross-ties where the broken rail was fastened on the track was decayed; but he states that it was not rotten. To rebut his evidence some six or seven disinterested witnesses testify that the cross-ties at that place were very rotten; that the rails were old and very much worn, and the flanges w:ere broken down, and the broken rail was mashed at the place where it was broken. Some two of the witnesses, who live near the place, testify that the rails at that place were old rails, brought from other places and put in. One witness testifies that he had a son employed in running over that part of this road, and that the track was in such dangerous condition that he had 'tried to induce his son to quit the road iorfear of an accident. In considering the evirlence I only take into consideration that which relates to the place where the accident occurred. The proof shows that the broken portions of the rail have been sent off to the rolling-mill, and have not been produced, either on this trial or on a trial at Birmingham for damages resulting from the same accident. They would have been important evidence for the defEmdant, if in its favor, and its non-production is a strong circumstance to show that, if produced, it wotHd have sustained .the cause of plaintiff, as it would have shown whether the rail was mashed down where broken, as testified to by witnesses. Besides, no other witnesses than the section boss have been introduced by defendant to show the cQuditionof the. track, or what caused the acci-
NEWMAN V. ALABAMA G. S. R. CO.
821
<lent. The section boss testifies that the decayed cross-tie, where the raii was broken, was mashed. partly down; he testifies that he had passed overthis part of the road and examined it either that day or the day before, and that some eight or nine trains passed over it daily, and that this was the first accident which had occurred at that point; and this fact, it is insisted, strengthens the testimony of Harper, the section boss, and which, taken in connection with the fact that it was his duty to examine the track, his testimony should outweigh that of the other witnesses; but I cannot concur in this view, and must hold that the weight of the testimony negligence on the part of the defendant, and a liability to the plaintiff for the injuries received. That the plaintiff suffered great loss of blood, and would have lost his life had not skilled aid been obtained, and that he also suffered considerable bodily pain and loss from his business by reason of the accident, is proven beyond a doubt. The preponderance of the proof also shows some im- . pairment of the hearing, and some temporary injury to the right eye, but neither of which, at present, seems to be very serious. What these injuries may prove to be in the future is uncertain. The most difficult question to determine is as to whether or not the symptoms of the disease known as diabete8 were caused py the injuries received, and as to whether or not it is of that type supposed to be incurable. There has been produced upon the trial on this point the testimony ora nUmber of medical gentlemen of known experience, skill. and ability in their profession, establishing almost beyond controversy two propositions: First, that doctors will differ; and, secondly, that they have not yet ascertained the true origin of the disease called diabetes. On this point they admit that they are at sea; some holding, more as matter of speculation, one cause, and some another. It seems, however, pretty well settled that some races are more liable to it than others. It is also thought to be in some instances hereditary; but it doubtless depends for its origin upon different co'nditions of the body, with the performance or non-performance of the different functions of the body, as well as season of the year, climate, etc. It is held by these medical gentlemen, or some of them, at least, that there is a predisposition to the disease in some person>:, and which exists for some time before it is known by the patient; that this latent <londition can be called into active e'xercise by personal injury or other causes; that some personal injuries received on particular portions of the head will produce, or at least accelerate, this disease. But, after considering and weighing all the testimony on this question, I am brought to the conclusion that the weight of the evidence is rather against than in favor of the conclusion that the disease, whatever it is, under which the plaintiff suffers, in this particular was produced by the iqjury received in the accident mentioned, in the pleadings; and that as to whether, ifit is diabetesofthat type supposed to be incurable, it had its existence in the system before the accident, and, whether accelerated, if at all, by the is too uncertain upon which to estimate the .damages claimed. But I am satisfied that for the suffering the plaintiff haa endured from loss of blood, which so nearly endangered his life, the
822
"FEDERAL REPORTER,
pain he endured, the temporary, if not permanent, impairment of his eyesight and hearing, and his loss of time and attention to business, the amount of money paid for medical aid, expenses in prosecuting his. suit, including cOllnsel'sJees, the sum of $5,000 should be awarded him as hiB damages. The finding of facts will be in favor of the plaintiff for that sum, and the costs against the defendant, for which judgment will be entered.
REBER t7. BOND. {(Jirouit(Jofl,rt, S.
n. Mi8Bi88ippi, B. n.
May 20, 1889.)
It Is the duty of the conductor and employes operating a freIght traIn, as to which some accommodations have been provided for passengers, to give passengers thereon iuch attention and care as is consistent with the opera· Rnd care as are required of the tion of the train, but not such strict employes on regular passenger trains; and a person riding on such freight train. who is injured by the negligence of the employes, is not entitled to as heavy damages as if the accideqt had occurred on a passenger train.
Petition against Receiver on a Claim for Damages. Calhoun· & Green, for petitioner. Nu.gem & Me Willie, for respondent. HILL, J. This petition was exhibited by petitioner in his life-time against F. S. Bond, receiver,in the case of Farmers' Loan & Tru8t Co. v. Vick8burg & M. R. R. Co., and since his death revived in the name of his administrator, to recover damages for injuries received by him by the alleged gross carelessness nep;ligence of the employes of the said receiver. The answer of the rl:ceiver denies the carelessness and wrong. ful acts alleged. Proofhas been taken on both sides, and the questions of fact, as well 8s1aw, submitted to the court. The undisputed facts are as follows: Dr. Reber, this ,petitioner, on the23d day of August, 1888, purchased a ticket from the agent at Brandon to, Jackson, and got aboard the ii-eight train bound westward, and took his seat in what is called the "caboose car," which hasin it cushioned seats for the accommodation of such passengers as might desire to travel by that train. When the train arrived in Jackson it passed the freight depot, and beyond Capitol street, stopping for a very short period with the caboose car at Capitol street, where one of the passengers got off the train, the eight-remaining. The train was then backed down to the switch, towards the freight depot. When the caboose got opposite the depot, it stopped {or·a short time, when some one remarked that that was the place to p;et off.. Dr. Reber, and all the other passengers desiring to get (Iff the train, arose from their sellts, and started to get out, when by a sudden jerk or jar the caboose was thrown back, which threw the passengers forward,who were on their feet, and Dr. Reber was