Year: 1873

circuit court.


s. DeatfR.Warrant, Passes DO not ke-


Eieye Common Carriers of Common


Liabilities.


INDIANAPOLIS, Nov. 13.-The case OF
Henry Horst VS.. the Indianapolis and st.
Louis railway for damages sustained by
being thrown from a box car while riding
on that road which involved the question
whether railway companies are liable for
damages sustained by persons travelling on
passes has been on trial here for two days
past it the United States Circuit Court,
Judge Gresham presiding. The jury this
morning rendered verdict in favor OF the
plaintiff for $4,000. The following is the
judges charge:


1t is alleged that the defendant was owner
of certain carriages used for the conveyance
of cattle and other live stock, and the per-
sons owning or having charge of the same;
that the plaintiff shipped six car loads OF
cattle in the cars provided therefor, to be
carried for a reward to the defendant; and
to have proper oversight and care OF said
cattle, he became passenger on such train
to be carried with said cattle as drover to
Pittsburg, Pa; that caboose or drovers'
car was attached to said train at st. Louis,
on which plaintiff was carried from st.
Louis to Matoon, Ills. The train arrived
at Matoon about l o'clock at night, when
plaintiff was informed by the conductor
that he was going to detach the caboose and
leave it at Matoon, and was commanded to
remove from the cabooSe and get on top of
one of the cattle cars, and while being car
ried in this position to a point about one
mile distant, where another caboose was to
be attached to the train, by the negligence,
carelessneSs and improper conduct OF the
defendants servants, and without fault on
the part of plaintiff, the said train was run
or backed with great violence against said
car or other obstruction, and i'll consequence
of the cOncUISSion, and from the insecure
position the plaintiff occupied, by having
been compelled to be carried on top OF
car, he was suddenly thrown from the top
of the car and injured.


The second count Of the declaration diff
fers from the first only by emitting the al
legation 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 drover's car or other suitable
conveyance for the carriage of plaintiff and





on the top of the freight car.


The defendant pleads two pleas, the gen.
eral issue and special plea alleging that
the injury was Occasioned by the negligence
of the plaintiff to which special plea the
plaintiff replies in denial. If the plaintiff
has satisfied you by a preponderance OF evi-
dence that he was injured as claimed, and
the injury was caused by those operating
the defendants train of cars, then the plain
tiff has made out his case and is entitled to
a verdict, unless by his own want of reas-
enable care he directly contributed to the
accident. But the burden of proving the
cOntributary negligence OF the plaintiff
rests upon the defendant and will not avail
the defendant unless it has been established
by preponderence of evidence. 1t would
not be enough to defeat recovery that the
plaintiffs want of care might have contrib
uted to the injury if the negligence OF de-
fendant or her servants was the immediate
cause, and if by the exercise Of proper care
or precaution the defendant might
have prevented injury. Where carriers un-
dertake to carry persons 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 defendent failed to exercise such degree
of care and diligence in the transportation
of plaintiff and the want OF its exercise was
the immediate cause of the injury received,
the plaintiff is entitled to recover, unless
the defendant by want of reasonable care
only contributed to his injury; and it would
make no difference in this case that at the
time the injury was received the plaintiff
was travelling upon ticket on which there
was a printed stipulation that by receiving
and using it he agreed to exempt the COM
pany from any injury that might befall him
by reason of the negligence Of defendant on
her servants. The company had no right
to require from plaintiff any such agree
ment, and its enforcement against plaintiff
would be contrary to public policy. If you
believe a proper provision for the safety OF
droverS accompanying their cattle requires
a cabOose or car to be assigned to them and
that it would not be properly pro-
viding for their safety to compel
them to ride upon the deck of
the cattle or freight cars comprising the
train, then you will have the right to con-
slider, if such facts have beenproved, wheth-
er or not it was proper exercise of care on
the part of defendent or her servants on the
OCOdSlOil NllCI IhC OSNNlASN' W w
tach, 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 point half or three quarters of
a mile distant, and to require plaintiff to
climb upon the deck of one of the cars to
remain there until the train should run to
where the new caboose should be thus at
tached. and until the new cabOOSc should
be thus attached; and if you should find
these facts proved, and that this was not
proper provision, while he was exercising
reasonable care to avoid danger. then you
should find for the plaintiff.


You have a right in estimating pecunia-
ry compensation to consider the effect of
the injury upon the past and future use of
the injured limb, the bodily pain and suffer-
ing, if any, already borne and which the ey
idence has shown he is likely to suffer in
future as a direct result of the injury re-
ceived; also the effect, if any, which the
same has had and is likely to have in the
future, on his ability to attend to his ordi-
nary affairs, and generally what will COM
pensate the plaintiff so far as a pecuniary
provision can be made for the actual injury
received through the negligent conduct Of
the defendant,