cross-ties on the track where the injury occurred, and this, too, after being warned of the danger. It is not made to appear that the appellee had any knowledge of this defect in the track, and it was shown by the evidence that he could not have seen these trenches without stooping down at the time; and this could not be done by reason of the moving cars, which prevented it. There was testimony that it was the duty of the appellee to remain in between the cars, after going in on the track, and try to effect a coupling. Some of the testimony of appellant's witnesses indicate that it was his duty to come out, and signal the engineer, if the coupling was not at first made. The evidence upon this point being conflicting as to whether appellee 'was himself negligent in the manner in which he conducted himself while endeavor. ing to make the coupling, as well as whether appellant's track was in such a condition for the proper discharge of the duties which devolved upon appellee by reason of his employment, as he had a right to expect, and as it was appellant's duty to have it, these were all questions of fact to be determined by the jury, and we cannot say that the evidence does not fully support their finding upon this point. Union Pac. R. Cơ. v. Randall, 50 Tex. 260.

Excessive

damages.

The fifth assignment is that the verdict is excessive. It was for $6,000. The injury was such as to deprive appellee of the use of one hand. In the case of Oil Co. v. Malin, 60 Tex. 651, the appellee had the flesh torn from his thumb and finger, and a verdict for $4,000 was held not to be excessive. In the case of Railway Co. v. Young, 19 Kan. 493, a verdict of $10,000 was decided not to be excessive for the amputation of a hand. As has been repeatedly said, this is a question peculiarly within the jury's province to determine, and only where it is made to appear that they have abused the discretion lodged in them will their action be set aside on this ground. We think there is no error in the judgment, and that it should be affirmed.

STAYTON, C. J. Report of the commission of appeals examined, their opinion adopted, and the judgment is affirmed. Interchange of Traffic-Duty to Block Frogs-Employe of Connecting Com. pany. Where two railway companies have an arrangement by which they receive cars over a delivery track at a certain point, a person employed by one of them to take the number of its cars and inspect the seals as trains are made up at such place by the other, is an employe of the latter within the meaning of the Ohio Act of March 23, 1888, for the protection of railroad employes, which requires every railroad in the state "to adjust, fill or block the frogs, switches and car rails on its track so as to prevent the feet of its employes being caught therein." Atkyn v. Wabash R. Co. (Ward, Intervenor), 41 Fed. Rep. 193.

* * *

Same-Negligently Leaving Cars on Track of Connecting Company-Liabil ity. Where two railroads have a traffic arrangement for the interchange

of cars, and one sets loaded cars upon the track of the other at an unusual hour of the night, and does not give notice or put out warning signals, it is liable in damages for the death of an employe of the other company who is killed in a collision with the obstruction. And under such circumstances, it would appear that the other company is also liable on the ground that every railroad company owes to its employes whose lives are at stake, a clear and unobstructed track for every train or car it puts in motion and orders on the rails with the assurance that there is a clear track, or on the ground that by the traffic arrangement for interchanging cars with another company, the other company is only its agent or servant in the use of the track and management of the business, the employes guilty of the negligence being pro hac its own employes. Lockhart v. Little Rock & M. R. Co., 40 Fed. Rep. 631.

Injuries to Employe-Evidence of Ownership. Where the plaintiff sues for injury caused by the negligent management of a railroad, or negligent construction thereof, it makes a sufficient prima facie case against the defendant to show that it was the owner of the railroad without proving affirmatively that the persons in charge were its servants or employes. Davis v. Button, 78 Cal. 247.

Damages for Personal Injuries-Excessive Verdicts.-A court cannot interfere with a verdict on the ground of excessive damages, unless such damages are so excessively large and disproportionate as to warrant the inference that the jury was swayed by prejudice, preference, partiality, passion, or corruption. Shumacher v. St. Louis & S. F. R. Co., 39 Fed. Rep.

174.

In an action to recover damages for the death of plaintiff's son, it appeared that the son was industrious, economical and temperate, and that at the age of 26 years he was earning $1,000 a year, out of which he was furnishing towards the support of his mother, the plaintiff, who was then 51 years of age, $200 per annum. Held, that a verdict of $4,200 was not so excessive as to require a reversal. Texas & P. R. Co. v. Lester, Tex. Sup. Ct., Nov. 8, 1889.

The testimony showed that plaintiff's left thigh bone was badly fractured and the knee joint stiffened so as to be immovable; that he was prevented from following his trade as a plumber or any kind of manual labor requiring any active use of the limbs; that he suffered great pain which could only be remedied by a surgical operation at a great risk of his life. The medical testimony was to the effect that the pain could not be alleviated except by means of the operation referred to. Plaintiff was compelled to walk with the aid of crutches, and he described his mental and physical pain as great. Held, that a verdict for the sum of $12,000 was not so disproportioned to the injuries sustained as to justify the court in setting it aside. Texas M. R. Co. v. Douglass, Tex. Sup. Ct., March 19, 1889.

Plaintiff was but 19 years old at the time of the accident, and was a strong, active young man. The injury caused him excruciating pain for a long time. He had been compelled to submit to a surgical operation, by which a portion of the ankle bone was removed. The joints of his ankle and foot were stiffened, and he had become a cripple for life. He was a laborer, and was neither qualified nor fitted for other pursuits, and his ability to labor in any vocation to which his qualifications adapted him, was greatly impaired. Held, that a verdict for $8,000 was not excessive. Henry v. Sioux City & P. R. Co., 75 Iowa 84.

In an action for damages for the death of a husband and father, the jury returned a verdict of $10,000. The deceased was a laborer aged about thirty-five years and earning a $1.25 a day. The evidence showed that he was stout, healthy and sober. Held, that the verdict was not excessive. Missouri Pac. R. Co. v. Lehmberg, Tex. Sup. Ct., Nov. 8, 1889.

Plaintiff received a gaping wound about two inches long and three or four inches deep in his side above the hip. The wound proved to be serious and permanent. He suffered therefrom from December, 1882, to the trial of the case in January, 1889, and his health was entirely destroyed. Held, that a verdict for $9,000 was not excessive. Western & A. R. Co. v. Lewis, Ga. Sup. Ct., Jan. 8, 1890.

Same-Death of Son-Elements of Damage.-Under Tex. Rev. St., art. 2909, which authorizes the maintenance of suits "for injuries resulting in death," and provides that "the jury may give such damages as they may think proportioned to the injury resulting from such death, the jury may, in an action by a father to recover damages for the death of his son, consider the circumstances of the son, his occupation, age, health, habits of industry, sobriety and economy, his skill and capacity for business, the amount of his property, his annual earnings, and the probable duration of his life, and they may also consider the reasonable expectation which the plaintiff had resulting from his condition, and the disposition and ability of his son during his life to bestow upon him pecuniary benefit as of right, or in obedience to the dictates of filial duty without legal claim. Hall v. Galveston, H. & S. A. R. Co., 39 Fed. Rep. 18.

Same-Reading Authorities in Presence of Jury. In an action for negligently causing the death of an employe, it is not such an abuse of judicial discretion as to require the reversal of a verdict for the plaintiff, to allow the plaintiff's counsel in the presence of the jury, to read authorities to the court, showing verdicts for $15,000 and $10,000 against railroad companies. Missouri Pac. R. Co. v. Lamothe, Tex. Sup. Ct., Feb. 14, 1890.

FORD

v.

LAKE SHORE & MICHIGAN SOUTHERN R. Co.

(New York Court of Appeals, November 26, 1889.)

Fellow-Servants-Injury to Switchman-Negligence in Loading Car.-Cars known as gondola cars, generally used for carrying coal, and which had boxes from 18 to 24 inches high, were loaded with lumber. The company had furnished suitable stakes which could have been properly fastened inside the boxes. Where the ends of the boxes were stationary one end of the timber was laid down in the bottom of the car, and the other end projected over the end of the box in cases where the timber was longer than the box. The lumber was piled, after it reached the top of the box, so that one piece overlapped another, the pile thus constantly growing narrower across the top. The cars were loaded under the direction of a foreman of great experience, and although they were not regular lumber cars, they were very much used for carrying lumber for short distances. Plaintiff's intestate, a switchman, was injured by the lumber on one of the cars falling upon him. The cars had been properly inspected, before being sent out, by competent and proper inspectors. Held, that the sole cause of the accident was the improper loading of the car through the failure of the employes to use the stakes furnished by the company, and that these employes were the fellow-servants of the deceased for whose carelessness the defendant was not responsible.

RUGER, C. J., and DANFORTH and ANDREWs, JJ., dissent.

41 A. & E. R. Cas.-24

APPEAL from General Term of the Superior Court of Buffalo.

Action by Emily Ford, administratrix of the estate of George Ford, deceased, against the Lake Shore & Michigan Southern R. Co., for negligently causing the death of plaintiff's intestate. A verdict was returned for the plaintiff. The defendant moved for a new trial, and the motion was heard on case and exceptions at the general term in the first instance and denied. The defendant appeals.

James Fraser Gluck for appellant.

Tracy C. Becker for respondent.

EARL, J.-This action was brought by the plaintiff to recover damages for the negligent killing by the defendant of her intestate, a switchman in its employ. In her complaint she based her charge of negligence mainly upon the following grounds: The running of an unsafe and unsuitable car; the careless and negligent loading of the car without fastening the timbers securely thereon; failure to properly inspect the car by proper and competent inspectors; and failure to provide proper and suitable rules for the government, control, and instruction of its employes.

Facts.

The material facts, as they appeared upon the trial, are as follows: On the 29th day of May, 1887, the Buffalo Car Manufacturing Company sent to the defendant's docks, on the Hamburg canal, nine cars to be loaded with heavy timber and car-sills taken from canal-boats. The cars were what are known as "gondola cars," generally used for carrying coal, and had boxes from 18 to 24 inches high. They were not regular lumber cars, but were very much used upon all the roads, running in and out of Buffalo, for carrying lumber. Regular lumber cars are flat cars, with iron brackets on the sides, into which are placed stakes for the purpose of holding the lumber in place. These cars had no brackets on the sides for stakes, and there was nothing but the boxes to hold the lumber. On some of the cars the ends of the boxes dropped down, and on others they were, like the sides, fixed and stationary. The lumber was placed inside these boxes, and where the timbers were longer than the cars, and the ends dropped down, it was loaded flat; and on the cars where the ends of the boxes were fixed and stationary one end of the timber was laid down on the bottom of the car, and the other end projected over the end of the box, in cases where the timber was longer than the box. The lumber was piled, after it reached the top of the box, so that one piece overlapped another, the pile thus constantly growing narrower towards the top. On some of the cars the lumber was piled

a foot and a half higher than the boxes. The car from which the lumber fell upon the intestate was one upon which the ends of the boxes were fixed and stationary, and the timbers projected over one end. Thin strips of board had been nailed to the sides of the box, as it is claimed by the plaintiff, to hold the timbers on the car; but, as claimed by the defendant, and. proved upon the trial, they were simply guides in piling the lumber, and were placed there for that purpose; and the lapping of the timber, one piece upon another, receding from the sides, was relied upon to keep the pieces in place. The nine cars were loaded by the employes of the defendant in charge of and under the direction of a foreman of great experience, who had been engaged in loading and handling cars for eight or nine years. This lumber was to be drawn about a mile, simply from one part of the city to another. The cars, all loaded in the same way, at the same time, all went safely, except the one from which the lumber fell upon the plaintiff's intestate. After the cars were loaded they were carefully inspected by two foremen, and they considered them safely and properly loaded. Gondola cars, like the ones in question, were very generally used for the transportation of lumber for short distances, and these cars were loaded as such cars usually were for that purpose. The court charged the jury that there was no evidence that the defendant was called upon to establish any system of rules which should provide for any different or safer method in the loading of the lumber than the method described by the witness Davis, defendant's foreman, as in use by it. We think that charge was correct, but, whether it was or not, the plaintiff is not in a position to complain of it, and the question of suitable rules is therefore out of the case.

Negligence in

There is no question, upon the evidence, that the two foremen who inspected and superintended the loading of these it cannot be said that the defendant failed to procars were perfectly competent men, and, therefore, vide competent and proper inspectors. The only loading carground of negligence, therefore, remaining to be ants. considered is whether the defendant furnished suit

Fellow-serv.

able cars and appliances. There can be no question that this

was a suitable car. It did not break. It was strong and capable of holding timbers, and such cars were generally used for that purpose. It is entirely plain that the sole cause of the accident was the negligent and improper loading. The defendants having furnished the cars, the employes should have placed the long timbers on those cars which had movable ends to the boxes, so that the timbers could be laid down flat, and when they placed the long timbers in the particular