Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-11-14
IMPORTANT DECISION.
The Suit Of Henry Hort VS.. the INDIAN
apOlis and ST. Louis Railroad
Company.
Persons Travelling on Railroad Passes
Can Recover Damages for Loss
or Accident.

ANO1AN AEOLlfSt NON6ElDci 10 AAiC
case of Henry Hart as. the Indianapolis
and st. Louis railway, for damages sus-
tanned by being thrown from a boX-car
while riding on that road, which in
vOlved the question whether railway
companies are liable for damages sus-
tanned by persons travelling IN passes,
has been on trial here for two days past
in the United States circuit court, Judge
Gresham presiding. The jury this
morning rendered verdict in favor of
the plaintiff for eight thousand dollars.
The following is the judges charge:
at is alleged that defendant was owner
of certain carriages used for the convey
snee Of cattle or other live stock, and
persons owning or having charge of the
same; that the plaintiff shipped six car
loads of cattle in ears provided therefor,
to be carried for reward to the defend
ant, and to have proper overnight and
care OF said cattle, became passenger
on such train, to be carried with said
cattle as drover to Pittsburg; that Ca
bOose or drover's car was attached to saiG
train at st. Louis, on which the plaintiff
was carried from St. Louis to MattOOn,
Illinois. That train arrived at MattOOn
about one o'clock at night, when the
plaintiff was informed by the conductor
that he wSs gOiug to detach the ca
bOose and leave it at MattOOn, and was
commanded to remove from the cabOOse
and get on top of one of the cattle-cars,
and the defendant did get ON top of a
cattle-car while being carried in this po-
sition to q point about one mile dis
tant, where another cabOOse was to
be attached to the train. BY
Al a
improper conduct of defendants ser
wants and without fault on the part
of the plaintiff, the said train was
run or backed with great violence
against the said car or other obstruction,
and in consequence of the conclusion
and from the insecure position the plain.
tiff occupied by having been compelled
to be carried on the top OF the car, he
was
SUDDENLY THROWN FROM THE TOP OF
THE CAR
and injured. The second count of the
declaration differs from the first only by
emitting the obligation that the plaintiff
was ordered by the conductor to get on
top of the freight-car, and in alleging
that the defendant did not promise the
drOver a ear and other suitable convey
ance for the carriage Of plaintiff, and in
he was compelled to ride
on the top of the freight-caT. Defendant
pleads two pleas, the general issue aud
special plea alleging that the in ury was
by the negligence OF the
plaintiff, to which special plea the plain
in denial. If plaintiff mas saJis- |
fed you by prepOnderence of evidence |
that ne was injured as claimed, and that
the injury was caused by negligence of
those operating the defendants train of
ears, then the plaintiff has made out his
case and is entitled to a verdict, unless
by his own want of reasonable care he
directly contributed to the accident, but
the burden of proving cOntributary
on the part of the plain
tiff rests upon defendant, and it
will not avail the defendant unless
it has been established by pTeponder-
ance of evidence. 1t would not be
enough to defeat the recovery that the
plaintiffs want of care might have con-
tributed remotely to the injury, if the
NEGLIGENCE
Of the defendant, or her servants, was
the immediate cause, and if, by the ex-
9Tcise of proper care or precaution, de-
fendant might have prevented injury.
Where carriers undertake to carry per-
SONS by the powerful but dangerous
agent of steam, public policy and safety
require that they be held to the greatest
possible care and diligence. If the de-
fendant failed to exercise such degree
Of care and diligence in the transpOTta-
ton of the plaintiff, and the want Of its
exercise was the Immediate cause of
the injury received, the plain !
tiff is entitled to recover, unless
by want of reasonable care, |
duly contributed to his injury, and would |
make no difference in the case; that at
the time the injury was received the |
plaintiff was travelling on a ticket on
which there was pointed stipulation,
that by receiving and using it he agreed |
10 exempt the car from any injury that
might befall him, by reason Of negli- |
gence of the defendant or her servants, |
the company had no right 10 require OF
plaintiff any such agreement, and en-
forcement against plaintiff would be con-
trary to public policy. If you believe
proper provision for the safety of
DRovERs
their cattle requires that
a cabo0se or car be assigned to them,
and that it would not be properly pro-
viding for their safety to compel them
to ride on the top of the cattle-cars or
comprising the train, then
you will have the right to consider, if
such facts have been proved, whether or
not it was proper exercise of care on
the part of the defendant or her ser
wants, on the occasion when the injury
TO detach, at midnight,
the caboOse in which he was riding
from the remainder of the train for
the purpose OF attaching to the train
a caboOse, at a point a half or three
of a mile distant, to require the
defendant to climb upon the top of
one of the cars, and to remain there Un-
til the train should run where
NEW CABoOsE
could be attached, ami until a new ca
boOse should be thus attached, and if
you should find these facts proved, aud
this was not proper provision, whileh he
was exercising reasonable care to avoid
daner then you should find for the plain
tiff. You have the right, in estimating
compensation, TO consider the
effect of the injury upon the past and
future use of injured limbs, the bodily
pain and suffering, if any, already
borne, and which, the evidence has
shown, he is likely to suffer in future, as
the direct result of injury received,
and also the effect, if any
which the same has had, and
is likely to have in future, or his ability
to attend to mis- ordinary affairs, and,
generally, what will compensate the
plaintiff, so far as pecuniary provision
can be made for the actual injury re-
ceived through the negligent conduct of
the defendant
The cashmere mill. in Cavendash,
Vermont, belonging to +. w Whipple,
of Providence, was burned. Loss, one