# Northern Pacific Company v. Herbert

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United States Supreme Court
116 U.S. 642
Northern Pacific Company v. Herbert
Argued: February 1, 1886. ---
The Northern Pacific Railroad Company is a corporation created under the laws of congress to construct a railroad and a telegraph line from Lake Superior to Puget sound. In 1879 it had constructed and was operating the road from Duluth, in Minnesota, to Bismarck, in Dakota. On the twenty-fourth of October of that year the plaintiff in the court below, the defendant in error here, was a brakeman in its yard at Bismarck, where its cars were switched upon different tracks and its trains were made up for the road. It was his duty, among other things, to set and to loosen the brakes of the cars whenever necessary, and whenever ordered to do so by the yard-master. At the time mentioned he was ordered to stop, with the brakes, two cars which had been switched upon a track in the yard. In obedience to this order he went upon the rear car and attempted to set the brake attached to it, but the brake was so badly broken and out of order that it could not be made to work. As soon as he discovered this he stepped on the forward car in order to stop it. The brake on that car was a 'step-brake,' and in order to work it he was obliged to place his foot on the step attached to the car below the top, and this brought his foot and leg between the two cars. This brake was also out of order, and while attempting to set it, his foot being upon the step, the car struck another car on the track, and was suddenly stopped. The draw-bar and bumper of the rear car had been pulled out, and for want of them the two cars, when the forward one was suddenly stopped, came violently together, crushing his leg, so that amputation became necessary. To recover damages for the injury sustained he brought this action against the company, alleging that it was its duty to provide good and safe cars, and machinery and apparatus of a like character for braking and handling them, and also to make rules and regulations for switching and handling them in they yard, and for notifying employes of the condition of defective and broken cars, so that they might not be subjected to unnecessary danger; but that it neglected its duty in these particulars, and thereby without his fault, he was injured as stated.
In its answer the company admitted the allegations as to the employment of the plaintiff and the injuries he had received, but set up that it was his duty to know, and that he did know, the condition of each of the cars, and that he carelessly put his leg between them when setting the brake of the forward car, and thus, through his own fault, suffered the injury of which he complains.
There was a verdict in favor of the plaintiff for $25,000. A motion for a new trial was made on various grounds; among others, that the damages were excessive. The court ordered that a new trial be granted unless he remitted $15,000 of the verdict, and in case he did so that the motion be denied. He remitted the amount, and judgment was entered in his favor for the balance, and costs of suit, which the supreme court of the territory affirmed.
For the reversal of the judgment several errors of the court below are assigned; but, so far as they are deemed material, they may be reduced to four: (1) In sustaining a challenge to a juror; (2) in denying a new trial on condition that the plaintiff should remit a part of the sum awarded by the verdict; (3) in refusing to dismiss the suit at the close of the plaintiff's case; (4) in refusing to charge that the plaintiff should have taken notice of the defects in the cars, and that he was guilty of such negligence in that respect as to deprive him of a right to recover.
W. P. Clough and George Gray, for plaintiff in error.
Thomas Wilson, for defendant in error.
[Argument of Counsel from pages 645-646 intentionally omitted]
FIELD, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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