NORTHERN PACIFIC R. CO. V. HERBERT, 116 U. S. 642 (1886)

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U.S. Supreme Court

Northern Pacific R. Co. v. Herbert, 116 U.S. 642 (1886)

Northern Pacific Railroad Company v. Herbert

Argued December 4, 8-9, 1885

Decided February 1, 1886

116 U.S. 642


When the allowance of a challenge to a juror for cause is assigned as error, it should appear that it was not peremptory if peremptory challenges are allowed.

An allowance of a challenge to a juror for cause and the selection of another competent and unbiased juror in his place works no prejudice to the other party.

It is not error that the court below, after motion to set aside a verdict as excessive, ordered that the motion should be granted unless the plaintiff should at once remit the amount deemed by the court to be in excess, but in that case the motion should be denied and judgment entered for the remainder.

An employer is not liable for injuries to his servant caused by the negligence of a fellow servant in a common employment, but this exemption does not extend to injuries caused by the carelessness or neglect of another person in the master's service in an employment not common to that in which the person injured is engaged, and upon a subject in regard to which the person injured has a right to look for care and diligence on the part of the other person as the representative of the common master.

If no one is appointed by a railway company to look after the condition of its cars and see that the machinery and appliances used to move and to stop them are kept in repair and in good working order, it is liable for the injuries caused thereby. If one is appointed by it charged with that duty, and the injuries result from his negligence in its performance, the company is liable. He is, so far as that duty is concerned, the representative of the company.

A statute which enacts that

"An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed in the same general business"

does not apply to losses suffered by an employee in consequence of the negligence of another person employed by the same employer in another and not in the same general business.

A statute which provides that "there is no common law in any case where the law is declared by the codes" does not take from the court the duty of referring to the common law in order to determine the meaning of a term used in the codes when they fail to define it.

The Northern Pacific Railroad Company is a corporation created under the laws of Congress to construct a railroad and chanrobles.com-red

Page 116 U. S. 643

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 24th 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 yardmaster. 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 employees 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 chanrobles.com-red

Page 116 U. S. 644

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. chanrobles.com-red

Page 116 U. S. 646


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