Los Angeles herald., 1892-09-09
A BIG VERDICT SET ASIDE.
Brakeman Lee'sLeg Considered
Valuable by q Jury.
But the Court Opined That the Cause
Must Be Retired.
Suit Against the Santa Monica Wharf
and Terminal Railway Brought in
the United States District
Court-Marriage Licenses.

=
cision granting a new trial in an i'm
portant damage suit against the South
ern Pacific Railroad company. 1t was
suit brought by brakeman namet
Lee, who had the misfortune to main
his foot while on duty, necessitating it
amputation, and had the fortune K
secure the extraordinary large verdic
of damages of $25, 600 in his suit against
the company. ,a
An opinion was handed down by the
court, and it's language is as follows:
This is a motion for a new trial
Plaintiff was employed as brakeman
by defendant, and while 80 employed
and while switching on a side-track,
near Hanley, in this county, the acci.
ENID complained of, occurred. Plaintiff
was riding upon the pilot of the engine
and stopped over to raise the coupling
bar to make a coupling with fiat car
returning upon the side-track, when a
jolt occurred, and his foot slipped and
caught, and the engine passed over his
leg, crushing it 90 it became necessary
to amputate it about four inches below
the knee. There was evidence
tending to show that the jolt
was caused by q worn place
or "chuck-hole" in the ball or top part
of the rail of from one to one and half
inches deep, and from eight to ten
inches in length, and plaintiffs foot
caught because the roadbed was not
properly filled up or ballasted. In rid
ing upon the pilot for the purpose of
making the coupling, plaintiff seems to
have followed the usual practice, and to
have been guilty of no negligence.
The verdict was for $25, 600. The mo-
tion for new trial is upon the ground
that these damages are excessive, and
that the verdict is against the evidence
and against law. While it is only in ex-
treme cases that the verdict of jury
upon the question of damages should be
disturbed by the court, yet l believe
this to be such case. No case has been
cited where a verdict of such magnitude
for a like injury has been allowed to
stand, but many cases are cited where
smaller verdicts for greater injuries
have been set aside by the appellate
courts as being excessive.
l am convinced that this verdict
would not stand upon appeal. More
over am inclined to the opinion that
the motion should be granted upon the
other ground stated. The rule seems to
be well settled, that while it is the duty
of an employer to use the diligence
OF cautious and prudent man in sup
plying his employe with safe machin-
cry and appliances, yet if the machinery
or appliances supplied are defective and
dangerous, and the defect is known to
the employe and he continues in the
employment with such knowle dge, he
is held to assume the risks incident
thereto, and cannot be heard to COM
plain if injured.
As said in the opinion in the case OF
Mad River and Lake Erie Railroad COM
pany vs. w. s. Barber, 5 Ohio st., 641,
"a principal is liable in damages for an
injury sustained by an agent or en-
ploye while in his service, only where
the injury is the result of an omission
OF that reasonable care on the part of
the principal himself in the discharge of
his duty, while persons of ordinary pru.
dence are presumed to exercise in that
particular pursuit. When, therefore, an
agent or employe of a railroad company
has been injured by reason of the neg
lect of ordinary diligence and care on
the part of the company, either in not
employing sufficient number of hands
to manage and safely run train, or in
employing or continuing in the employ
ment of the company incompetent and
unsuitable persons, or in not keeping the
road in proper repair, or in providing
the road with insufficient, defective and
unsafe machinery and cars; in either
case the company is liable. But the
company is not liable even in such
case, providing the agent or employe,
with full knowledge of such omission of
duty or neglect on the part of the COM
pany, waive the matter by continuing in
the service of the company without
taking the precaution, or using his exer-
tions to have the omission or difficulty
remedied. For if the agent or employe
waive the omission of duty on the part
OF the company, he takes the risk upon
himself and must abide by the maxim,
valenti non fit injuria." Some authori-
ties 60 to the extentof holding the en-
ploye to the exercise of ordinary
diligence, and if both employer and
employe have equal means of discover
ing the defect, and it is unknown to the
employer, and the employee could have
discovered it by the exercise of reason
able and ordinary diligence, no liability
exists.
In the case at bar it is not contended
that the plaintiff knew of the particular
depression or chuckhole that caused the
jolt resulting in the accident, but that
he we'll knew the unsafe and dangerous
condition of the side track, is clear from
his own testimony. He testified that he
often looked at the side track as he went
along there, and noticed it's neglected
condition; that, like all other side tracks
OF defendant. it was made of scrap
and refuse iron, rails that were ham
mered down, and battered out, and full
OF holloWs, ridges and chuckholes.
Knowing the defective and dangerous
condition OF the sidetracks of defendant,
and continuing in its employment with
such knowledge, it would seem to me
that he assumed the risk incident to the
use of them. agree with defendants
counsel that the case of. Michigan Cen
tral Railroad company VS.. Austin, 40
Mich, 247, is in point. Two cases are
cited by plaintiff (Filke VS.. Barton and
Albany Railroad company, So N. Y,
549, and Snow vs. Housatonic Railroad
company, 8 Allen, 54l , that would seem
to hold that the employees continuing in
the service, with knowledge of its omis-
sion or neglect of duty on the part of the
employer, does not constitute waiver,
but the great weight of authority, /
think, supports the rule as first above
stated. As
| believe it to be my duty to order a
new trial, and the motion is, therefore,
granted