OSBORNE t1. CHICAGO & N. W. BY. CO.
49
Olicetlseful fictions; andis, '* * * by of section 914 of the Revised Statutes, the rille of procedure in this court." To maintain this action the plaintiff must have some sort or degree of a legal estate in the land, as well ItS a present right to the possessiol1;-something more than ,Iln equity or a right.in equity to have such estate. In Wilson v. Fine, supra, I held that an actual possession of land at the time of the ouster complained of was a sufficien,t legal estate therein to enable a party to maintain the action against a mere intruder, - 8 person with no better title. The defendants. in my judgment, are mere intruders; but .the plaintiff does not.appear to have ever had possession' of these lands: As mortgagee it waS not entitled to possession, o.n& does 'not appear to have had it The entry-men under whom it claims ,do not appear to have remaiped in .possession after receiving their certificates. They did not appoorat the contest. Whatever right the plaintiff has it must enforce inequity. The, findings. ofl the court will be that the plaintiff has no legal estate in the prEimises sought to be recovered, and can take nothing by its a.otions. "
OSBORNE ti.
CHICAGO
& N. W. By; Od.
(OtrcwU Court, 8. D. Iowa, C. D. November 9, 1891.) ',"
L
C,UUUEBII-INTBltBTJ.,.. ComnRcB LAw-LONG RATES. " ' ,
.un
SUOJlT HAULS-JOINT TABIl'Jr
, A railr'oad compal)y cannot justify itself in eharging a greater compensation for ,a sll.orter than for,.a ,haul, under substantially similar conditions, contl,'ary to the provisiOl:1S of 'the lDterstate commerce law, (Act Congo Feb. 4. 1887, 54,) on the ground that the rate is fixed by a joint tarift agreement witll other roads. 2. B.&Jm-COMPUT.TION OF RATES. Nor can It do So because tile result S4M;E-POWERB'
comes about by reason of the selection ofdif. 'ferent poUlts on the line as a basis for computing rates, so as to charge one rate over one part of the road and a ,difterent rate over anotherparl. 'Under 'the interstate commerce law the power of determining whether a railroad company is relIeved from the 'Operation of the long and sborthaul clause lies solely '!Vith the inter,atate commerce commission; and tn an action for damages in a federal court for' a violation of tb.at clause, when no authority from the commission is shown, the company cannot claim that it was justified in so doing by reaSOll of the existence of a secret cut rate among competing roads. whereby a large part of the traffic naturally tributary to It was diverted. ,Whether the "ylrcumstances, and conditions" under which a railroad coD;lpany has charged a compensation for a shorter than for a longer haul over the same line were' substantially similar, "within the meaning of tbe fourth section of the interlltate commerce law, isa question for the jury. ,
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8.
0"
,CoM;M;ISSION.
'" B.urE-" BIMIL4BCIRCUMSTANOEll' AND CoNDITIONS "-PROVINOE OF JURY.
5. BA.ME-HEABURB OF, DAMAGES. " 'In an acitibnbya shipper against a railroad company for charging a greater compensatiQn'for a shorter than for a longer haUl, In violation of section 40f tbe.interstate commerce law, the measure of damages is the excess in, the rate for , the shorter haul' over that for the longer baul, mUltiplied by the number of hUlldred pounds shipped by the plaintiff. ' 0. BAME-DAJUGIl:B-WUO LIABLE....AoTION OJ' TOBT. As the right of action given by the law is one for damages. as for a tort, any raU: road CQmpaoy,whiCb· makes the overcharge is liable for the fnll amount of the dam-
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At Law. Action for damages violation onM long and short haul clause of thethterstate commerce law. \ . ·C; C. (k O. iIJ. Noor88, for plaintiff; : ." J :', ..... Wi O. Goud':ljjahd Hubbard·(k DatlJl,ey, for
iTj ,f(cluJ/flying juryorolly.): The issues the case on trial you ariseundel! ,the· provisions'of .the act' of congress passed Februaty4, 18137\ the "biterstate the United States"for;Uie purpose of reg.ulati>pg'the .business carried on bythEl''Common carrjerS of, persons and property:by:means. of: railways,: Of by.a, eombhiation ofrailwl\ys and water travel, has passed this act, which regulates, in certain particulars, ·theoarryingon . of the paS'Jenger arid 'fteigbt between states and ,teDritories 'of th.e ,The :law, by its provisions, applies to interstate commerce; that is, commerce that is car;. ried on between the states and territories of the United States. Section 2 of this act in substance prohibitS the charging or collecting from any person or persons a greater or a less compensation for services rendered in the charged or collected from others for the transportation of similar property, under substantially siQl.Uat 3· Qf:,this act makes it unlawful for any common carrier to make or give any undue or unreasonable "preful>ertde 'Or advabti1ge to anY'P'erson', cotnpany; "or o.thers, or to· any pa,liticula,rdeaunptiQn of traffic. Sec. it· 'carrier. or:.l"eeei ve greater' co.mpensation in the aggregate for the of .alike. kipd ?fpropertYr simi;. ,Jar' tbu.n for. a longer ,dIstance. oVel tPe same line, in the same;directioD; the shorter being included in ·thel(lJnger'dis-. : mIssIon :.appoInted uDder, .theplllVlSlOnSQf thIS act"such comllussion dlstancet' and·.ln this twaf Wleve: the ca·rrierfrom the ,0peratlOno£, the provisiob$cOfsedtiort'4' of'this act:,'"",: '.... '. c ,. . '.' .,.'., In the,gwln.oF.· ,plalDtlff thdethe the that .bIm. to pay a larger sum for tbe transportation':of cE!rtaingtt'lt'in, . <>f, hl the iltate .ofJ;owa, to. the. ,mty,of:Ohicago,' Ill. ,than the ·company was then
,r.n
m the state o{Nebraska to ChIcago, the hl.tterbel,ng the longer dIstance.
»ytbe,p1ai.ptlif :lSI
eachshiptnent'Iblu:{e fQ!.'th,wl;th. ih.:e,.nu·lJ1ber,Qf pounds shIpped.: and J
'_.CHICAGO ·.
co.
the rde charged,. to-wit, 18 cents per h 11ndred poundlJ, and ,the answel the statements thus made to be correct. On pehalf of the plainit. is ,claimed, t?1lt, the ,thuscbarged him was, greater than 10 force oveithe defendant's road upon shipments made from Blair and other Nebraska pQints,and plaintiff has introduced evidence tending to show tbe rates qharged from Blair and other points in Nebraska, and the excess thereof over th,erates charged.. to plaintiff fOI shiprpent of like kind !>f grain from Scranton to Chicago. On bebalf pfdefendant.' it is denied that the rabis. c;harged for the, transpoJ,'taWm froD;l thepoiQts named in ,Nebraska in fact plaintiff. shipments, from Scranton, and, ·defendant has intro<;h;lced evidence tending to show the rates in force at the differentUroea'included in the controversy, and· further claims that the rates in .forceAroIll, Blair and other points in were the result of .. joint by the Fremont, ltlkhoru & Missouri Valley Raj).. the City & and the ,and further pleads that the circumstances in ip, 'Nebraska. iyeredissimilar from those existing in Iowa at in question were made, because there exisied, upon Unesof railway running to Mo.,!lnd Beardstown, and' thence, connecting witb lines reacping the eastern seaboarq, 8 secret cut rate upon which ,resulted diverting from running, Iowa to Chicago a large part of bvsinl'iss whicp, properly pelonged to. it" the same being' sent fro lll pointe in Nei;lraska ove,r thesoutheriilines,: and was to mee.tthe thus created,' tl18t the sO-called Nebraska tariff was put ip' fo:we., ',.. ,'".. . '$oJa,l' as tllelllstter of the' ratesfroD;1 :alair and Qtberpoints in Neto by means of joint tariff arrangements and its connecting lines. extending intq behrtlcn the Nebraska, tOll.t '.will not 'the plaintiff's right of recovery, if the facts sbolvthlil.t the defenda.Qt company charging a greater sum for the like the same lime, and under the like circumstances, for a over the same line shorter than a 1.;mger haul inihe same wbicq it was 'carrying the gqdnshipped .from Nebraska, under the rates by the! joint tariff. What I mean to, say is that if,; from the deri('.ein this Case and the in$trqcti6ns which shaH be furthergiven you by the court, you shall find that the, Chicago Northwestern COll1pany by the enteringinio ,8 joint tariff with the Fremont, Elkhorn &Missouri Valley Railroll.(rCpD,lpany and the Sioux City & Pacific Rl/-ilroad ,aided to put i.n 'operation 4triff rates, whereb,}' corn could 'Ilh,i'pped from', Blair and, other points, in Nebraska, unde,r thelikecircun1stances conditions as the corn lind ()ats shipped from through Iowa, to the city of Chicago" and that, by points:in doing a larger S11m WliS, charged :f9r. a shorter haul than f()l a longer baul ov.erthe same lirie in the same direction, then the ChicagQ & RailwayQompahy. by joinIng in that tariff, and by ing ,it, in haa itself be call:ed" ,to
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F1l:bERAL REPO:R'TER,
Yol. 48;
aeco*,rit by any one who has suffer6(l damage by reason of the Chicago &N6rthwestern Railway CompanY'schl;l.tging that person a larger sum for the shorter than for the longer haUl; il) other words, companies cannot escapethe duty and obligation that is placed upon them by the provisions olthe interstate commerce law by entering into joint tariffs. Railroadshaye the right to enter into these joint tariff arrangements. The of the country could not be carried on, probably, at least, not withally success, unless it was done, they have a perfect right to do itj,bllt when they do do it, duty and obligation is on them to observethe provisions of the interstate commerce law in making and puttirii( into operation these joint rates. It is 'just as much a violation oftbe' Hiw 'to charge a larger sum for a shorter than for a longer haul, under ,stibstantially similarcil'cumstances, if it isdo l1 e by the operation ll. as. it would be 'if was don.E! by (the operation of a smgle tarlff by a smgle road., ,.. '", , ,,' · Aga,itl, it appears ipevidenceotlia:t; in r;naking the various taiiffs orsdhedules of rates which have been put inoperati1l,u, from time to thnetdifferent points upon the defendant rdaclhave 'been taken, as I undetjltarld,the testimony of the witneSses, as the basis used in establishing the rates. ,.By way of illustiatioh:'They figure from Ii certain poiht,'like East Clinton, on the Misllissippi. , They:will take' that asa basis, or they will take Chicago . a; basis" for; figu'l'ing'on. Theymay take Turher Junction as. a basisfoj:' ,figuring'On, ot'they may take ti$: It basis for' figurihg'on..: Now', matter for the railwaj' cbmpaniesto de,cide for th'ernselves, for, tneir convenience in maldilg out the diffel;ent schedules "of rates. 'But, whatever basis or .they take as a basis for IS upon them that they shall the prOVISIOns of the law. They pannot, by to some pOInt arbitrarily fixed by themselves, by naming thep6itltswhere they shall to be billed to,make a redu6tlon bycparging a rate to:that,'point, and frOm there another rate toan,<Hher point,-they cannot in 'that way escape the consequences, the that, arrangement, if it puts ,an ,undue 'burden upon aIlS ,shipper. By way of illustration: Here is theCJhicago & NorthwesterllR,ailway, that runs fro111 Missouri Valley, thrbugh to Chicago, and tlfrotigh Turner tion andR()chelle, wewUlassume. Now.: the,Il" if the Chicago & Company, in tariffs, takes :rumer Junction,br Rochelle, or any other point on 'the, way to Chicago, a8liL it, do .that;, bu:t it ,can9;9t, by that, tIfy 111 I?Wll a produpe through,toChlCugo than lt parties from that is tpsay,the duty aqd obligation, as I have already said toyou, i,!! on. theIl1'1].o( to make Rhyunjust., gIve any ,undue ,to shipments made poh(t,sor 'Qcll;lities, 'or any undue prerere'nce to the another,nor of one of busine.;;s over . ,'.the general tIieqry of the ipferstate conhrierce law is that, as neai' arf it can be'done, aU localities lirid all
0t
as.
OSBORNE
v.
CHICAGO&:. N. W. RY. CO.
53
individuals substantially similarly situated, shipping freight over the samp, line of road. in the same direction, under substantially similar circumstances, shall have the same or ,properly proportioned rates; in other words; there must be no undue preference given to one individual over another, or one locality over another. It is just as 1U uch a violation of the law to do that b)' a1l:Y method of adopting different points, and billing cars ,to one point, and then to another point, on the line, as it would be a violation of the law to simply charge a greater sum for a less service of hauling from one pointto another. The plaintiff sets forth his cause of action in two counts in the peti. tion. In both counts he charges that on certain dates that are named in the accounts that are attached to the petition he forwarded certain gr,ain and oats) from Scranton, a station upon the lilll:l of the Chicago & Northwestern Railway, through to Chicago, and that hewas ch;:trged at that time a rate greitter than the. rate wllicb the railWaY company was giving to its patrons or tv others at Blair and other points in Nebraeka" a. point is ,at a distance greater than is Scranton. froOl the termin14 point, Cli:icago. Now, as I understand, it, the thatyou"have to determin,e; under the tbe, cai:l6, is whether, that statewent. is true. ,Is it true that,. upon aqy one or more of the · are set forth in the schedule 19 the petition, thE! plaintiff was required to pay a grea,ter sum than was. being charged Itt that time .by the defendant, & Northwe!3tern Railway Company, for performing the like service Jar the transpQrtationof other grain ,of tl;1e same '. kind (corn and oats) fro.ID points in Nebraska, over the same line, in the same directioj), passing through Scranton to the city of Chicago? E"idencehas beenJntroducedin the case upon which the court has been asked to sU,bmit to the jury. for your jietermination, as a. m!;lttcr of fact, whether the w;ay ,«ompany was not just,fied in makillg reduction of rates, by reason o.fthe.fact .thatit appeared, as it is claimed under the evidence, that there had been what was called a "secret cut rate," putin operation in Nebraska, which business upon the line of the Fremont, Elkhorn & Missouri Valley and the Chicago & NorthwestRailwltys; the result of this better rate being to cll:use quite a, large portion of the business that WOllld naturally be tributarY,to the Chicago & line to go south, by way of St. Louis andBeardstown, and in that way, through St. Louis and these. soutpern points, to the -eastern seaboard. .Under the ruling of the court upon ,the quest¥>n pf law, althQugh a rate of that kind may have existed, it is the view of the .court that that question cannot be determined by this court !lnd jury. The consideration of questions of that kind-of the right of the raihvay ,corppany to be excused from lhe puty and that is placed upon it by the section of the interstate commerce law-is, by the eXpress terms of the law itself,conferredupon the interstate commerce As you know, there is a hotly of commissioners provided for hy this interstate commerce act, and the. fourth of this . act, by its terms, in.a provil!o is therein contajl)ed, places upon the commission duty, and gives them the au.thority,to, inveBtipte..-: j
54, and deterriline whether there aresuehfacts and ia,;1aHtoad at a given fUhle as would justify the iriauthorizing thet railway company to charge a greater surrifo:r a shorter than for a haul over thlfSilfue line, in' the same direction, under otherwise substli.ntiaUy similar circumstances; In the view that the court takes of it, thia,c'O\ll'tand jurycan1'l.bt detennine that question, which, by the law, the commission are authorized t6 Whether the railway company was justified by a cut rate,making what was called in argument "illegitimate and circumstances of that kind which grOi'i' o\1t 'oitha handling and manageJ;nent of the railroad' business of the 'coul'ltty;by othercotripeting lines, and its effect upon the business of the defehtlant company, in tnejudgment of the court, is a question that:Cll:dnOt'beJsUbmitted', to you; Questions of that kind are for the determination oL.the ' board of commissioners appointed uhdeX'ithis' Rct,and the 'courtS' arid. junes, when' they are called to act updhparticularcases arising undertbis act, where it is claimed that the law has"beeri vi<>}atedi,'aTe onlyauinol'ized to determine the question whethetfln the of the property, its con'and other facta which inhere in tkecarrying of the freight upon the particular Hne whitlh is 'chlirged'withthe wrong-doiTlg, there existed dissimilar 'circumstances,arid conditiOtUl, reIievingthe company from the charge of oo11ecting a larger rate fot"the shorter haul over the same line, in under.othetwise substantially similar circum'Now,theiVif the railway company had been then th,ey could plead and prove that fttct; 'altd it would 'the duty of the' court· to instruct the juty.J,tllar that wouldjustifylhe:railway company in making the larger rttte'forthe shorterdistancei'b'bt no suchaction has been taken by the: interState 'commiSsion. Thei llate potbeen called upon to act. and theY:balve" not authorlzedtberail'waY'cOmpliny to charge a greater sum for the.tshoi-ter than for the,longer'disttmce. , · 'the I before you, as 'I view it, this court abd 'Jury cannot authorize 'the railway company to make such charge,'01' justify it after it has been' done. There'is no evidence in that the railway ,commission, has ever passed' upon the questiontdrlauthorized therll.ihVlt)? company to charge'agreater sum for the shbrtefthari"for the longi'lr distance; therefore, the guestion comes down the evidence satis(V, 'youthitt at the 'time' w].)en the Chicagd &, NOrthwestern Railway Company'transported the oats anJ,corn set fortliiri ,the schedules attached to the petition from Scranton, Iowa, to Chicagoj'lll.; it badin fo!ce and operatioh a tariff'.rate whereby it did,eithel'byitself, or in conjunction with the other. roads that have been na·mtid in your ttansportthe like produce (<:orn and oats) . frOID' pointS in Nebraska over thissarnelhle, the Chi"ago & 'Northwestern RaUwny;' ih the sarnedirection; toChic3go, Ill., ilt a rate less than it, Was charging for the to 'tlIe.. plaintiff? Now, 'if it did do. tliiitt-if there;' was to' influence the, Chicago & Northwestern tb,put a lowe1'rate in 'operation in Nebraska,-it had a 1
4-
W.RY. co.
55
right to do it, and had aright to fix this rate in compE)titiqn with any secret rate .to which it m,ightpe subjec:ted in Nebraska, either directly or indirectly, through ,theoperll.ti.ons of, -(lompetjt\ontbat· was brought to bear upon the roads connecting with the defendant line" the Fremont, Elkhorn & Missouri Valle;v li!ltl the Siolilx.City & but if, by reason of that competition, or for liny other the Chicago & Northwestem Company did enter/into ajoint arrangement with t\lese companies, in which it fixed thislower rate, tilen, under tbe law,. it",ascharged witl;1 the duty of not charging a greatersjlm to Lowa.shippers,for tpe shippingot the like its line of ,road; to Chicago" under. substantially similar ()ircumstances and conditions,. becllUSe was :tbeshorter distance. And if it were in fa(}t, proven that it did !Cbargeagreater sundo IQwashipperspn the and for, the like,service, it would estalllisb /I.,violation of the clause of the interstate commerce law. chargiqg;agreater sum: for hauling,a shorter, than;f()r pauling a longer distane», under substanrtiaUysimilar '.l.' , ' Now.then. genfulmen"i,t:is·Wr you to! undert'\le eV,iqeqce in, this case, whether ,that, WalJ, for'Wardedby the pllllinti$ ,ftom SCllmton, wall of the" same ,kind, that. $lefend,ant, forwarg,ed ,cantak!,,jU<Ucial uudm',_tatatiff.frO,mi the di!ltance is 10: Ulinois than JrQQl aCraaton, Iowa, to ImnQisiandit is for qtlis in the' evi<lenee,wbether the Nebras!t!J. grain: passeq over·the, SIUD&. ]iQe (the Iowa, to Qhicago, ,Ill; Is, inrthe ,it is,submittedtq ypu,that would ju&-tify:you in finding that; Jhere was@ydissimilarity i,n stances' and conditions under ",hi,ch defendantrl!-ilway compatjy! for:warded the' freight- of theplatntiff Cr0ln ' Scranton, Iowa,anq, un\ier which' it forwarded ,the prQdu.ce, (corn!lnd oats,) coming within this schedule or tariff ofrates ,it received the same from ,lug in Nebraska? As I have alrelldy,said to you, the law,under ,this fourth section of for .similar servicej3,renunder similar circumstances, it sqall not charge.a greatersPm for a shorter than longer· over same line,and in the same ,dil.'ection. Has the,plaintiff"ppoqwbClql is the bUl,'den of proof, lied you, by a fair preponderance oUhe evidence, that as to anyone qr ·moreofthese l'lhip,m,ents that are set fort,bill the petition the qefenqant oonll>l\ny did in. faQt· charge, a greater sum for hauling from Scrantpn th,e oats and produce Qfp}aintiff than, it charged f9r tbelike servipe!,\ ,fr9U1 .Blair, Nell., at tiJne? If so,and, if is nothing, in;the !evidence .of cirQllmstllnqel'l: surrounding grain would justify in luaking ,thlln frpmNeprask,a points l has sum .for lIlakinga shprtetthwLa of tJ:i.e like sQc1oin8: : J : , ) ' ",;::,
1:
56
FEDERAL REPORTER,
vol. 48.
There is a dispute between the parties as to the rates that were charged as tos6me of these shipments. That is a matter for you to determine undt:!rthe evidence; and if you find that, in fact, the Chicago & Northwest'erri:Railway Company did not make any discriminat.ion,and was rioFBharging tpe plaintiff for conveying his property from Scranton a largerrll.teftom Scrantob, Iowa, toOhicago, than it charged at the same timaft'om' Blair, and other points in Nebraska. to Chicago, then the bas failed to make out his case, and your verdict must be for . the defendant. If, on the other hand, you find on this issue for the other words; if youfihd that the Chicago & Northwestern RaIlway Company did charge more for the transportation from Scranton to than it was charging at 'the same time, for the transportation of likep1'Operty, under like circumstances, from Blair and other points in: NebrasKa;-that would justify you in finding upon that issue for the plaintiff,' and we ,then come to the rule of damages. damages 'under both counts of the petition is the same: First ascertain what the rate was that was, fixed for the transportation frdfu :J,31air; 'and other point!l in Nebraska; that, iS,the rate per hundred pounds.'·Then find whatthe.rate was that waS in fact charged per hundred 'poUnds to the plaintiff for forwa.rd'ingthe oats and corn from' Scranto 0hic,ago·. The difference between these twoJif there is any, is the damage' per 'bundred pounds that was cadsed the plaintiff. Now, the schedules attached to the petition show tM number of hundred pounds th'l\t is claimed 'to have b,*,n transported t and it is admitted in the answeHhat these were transported as shown .so there is no dispute on that! p()int. Take the humber o,fhundred pounds tbat you' find were transported, and take the difference, if any, between these rates per hundred pounds;'and, by mere multiplication oione by the other, you will amount of damage. It maybe required that you make this computation more than ollce, because it is claimed tha.t, the differencewas less at times than at other times, and that is for you to determine under the evidence. Take the number of hundred pounds of these shipments, as they are set forth in the schedules attached to the petition. Ascertain the rates fixed by the tariff that you find defendant at that timehad in force from Nebraska. Take the difference between that and the rate actually the plaintiff, if' there is any, and the difference is the damage per hundred pounds that has been caused the plaintiff. You understllnd,gentlemen, that it is the damage to the plaintiff that is. to be considered. It is not a questiOn of how much the defendant railway company may have received. When joint ratasare made, the sbipper has with that; he has no control over that. His privilegeis to'c1eliverlhis freight that is to be transported to the railway company, and, if it C'Q'mes undertbe operation of a joint rate, it is not a matter of 'any moment, as between him and the railway company that handles his Treight,' whilt'particular sbare or portion of th.e rate that is actually paid onthe's):iipment any particular railroad received. If two or more railway companies, entering into a joint tariff arrangement, shall so carry it out as to cause a damage to the by· way of illustration,
ATCHISON, T. &. 8. F.
Cp.
WILSON.
57
charging him under the joint tariff three cents or five cents more than they ought to have charged him, - it is not a question in which the shipper is interested, when he sues to recover, to know what particular division may have been made of the five cents thus illegally charged. The shipper would have a.. right to look to all of the railways, or to any one of them, which had aided in committing the wrong, by receiving him a larger rate than he ought to. have been charged. If, by the effect of a joint tariff of rates the Chicago & Northwestern Company aided in putting in operation, the plaintiff was charged for shipping his grain from Scranton five, or six, or one cellt more than they ought to have charged him, the plaintiff is entitled to recover in this action the amount of the overcharges he has paid, regardless of what division may have been made, or whether there was any division, between the different companies putting the joint rate into operation; because it is not a suit to recover back the amount the defendant company may have received, but it is an action sounding in tort for damages, wherein the shipper seeks to recover the damages claimed to have been caused him by charging an illegal rate. The unlawful overcharge is the element on which the claim for damages is based. Under the law', it is within your province to determine whether or ,not interest shall or shall not be paid on the amount of overcharge, if nm find . any. If you find that the plaintiff has been overcharged upon particular shipments, it is not a IrUltter in which the law determines whether interest shall be given or not. In some cases founded on breach of contract, the parties maybe entitled to recover interest; but in cases for damages sounding in tort, (and this isa .case of that kind,) .it is within the province of the jury to award interest or not.. 'If" in order to, fairly compensate the plaintiff,in your judgmeot,he should receive 6 per,cent. interest, it is within your power to award it.
ATCHISON,
T. & S. F. R. Co. ". WiLSON. October Term, 1891.)
(Circu(t Court of Appeals, Eighth
1.
MASTER AND SERVANT-INll'mIES TO SERVANT-DEFEOTIVE TRAOKS.
I.
While plaintiff's intestate and other railroad hands, engaged in a piece of wrecked track, were removing wreckage by means of a derrick-car, the derrick unexpectedly swung to the north, and upset the ear, and killed theintestate. The ground at the place of the accident was softened by prolonged rains, and there was evidence that immediately after the accident the north rail under the car was found to be several inches lower than the south rail, though there was no curve in the track,. and that the consequent slant was sufficiont to cause the derrick to 8wingas it did. Some witnesses testified that only three ties were laid under each rail; others that there were ten or twelve. Held, that such a slant of the track, whether due to careless construction or to the sinking of north rail after it was laj.d,is such a defect as constitutes negligence on the part of the railroad company, al1d'the question of its existence was properly submitted to the jury.' . . . The railroad company cannot .escapli\ liability for such negligence on the that it was the negligence of the intestate'8 fellow"servants, when the coIlipa'ny'. road-master was present, imd in charge of the whole work of reconstruction.
B.unt--FELLow-SERVANTS-VICE'PRINCIPAL.