Statement of the Case.

which are out of repair, and there are cars that come in there from other companies. Our company don't hold us responsible for fixing those cars, because we don't get paid for it. We are instructed not to use our materials unless it was for a broken drawhead, and then we would have to put in another drawhead. Sometimes we do work and card it to go to other companies. There are a great many cars come in that way, marked 'defective brake.'"

This witness also testified upon the question of the defective brake as follows: "He was a car inspector in the employ of the Baltimore and Potomac Railroad Company; that Robert A. Brown, the deceased, was the chief car inspector in the Jersey yard; that he was acquainted with a man named Downs, who was supposed to be the chief car inspector; that on the next day after the accident, or on the evening of the next day after the accident, the witness went, in company with Mr. Downs, to examine this car with the defective brake; that he was not positive whether it was on the day after the accident, or the second day after the accident that they went to examine the said car with the defective brake; that he went with Downs to assist him to find the car; that they found it and made an examination of the brake, and that the result of the examination was that they found the brake was a defective one; that the car was marked 'defective brake' on the end of the car; that the witness got up on top of the car and tried both the top and end brake; that he first put the brake down, and then came down and examined it, and found that the bottom connection was too short, and that if it had been a long connection, or connected all along, it would have been a pretty sufficient brake;' that this car was brought up from the Jersey yard during the night, or in the morning, along with a draft of eighteen or twenty or twenty-five other cars; that he did not know whether this car with the defective brake was hauled by another engine or was shifted backwards. and forwards after the time of the accident or not; that the car was still loaded with oil; that chalk marks 'defective brake' were on the car when it got into the Maryland Avenue yard; that he did not know how the car got there; that he went with

Statement of the Case.

Mr. Downs to examine this car at about half-past six or seven o'clock in the evening; that he examined the car with the defective drawhead shortly after the accident; that he saw the tools lying around there which were used for the purpose of fixing cars, and that he examined the drawhead and saw what it needed; that he told the men to look out for him, and he got under the car and did the work; that it took him about three minutes." On cross-examination, he further said "that he did not know that the brake which he examined was the brake on the car connected with the accident, except that he was told that that car was the cause of the accident; that he did not know it as a fact; that Robert A. Brown was his superior officer - 'our leader' — or foreman in the yard; that he, witness, first discovered the chalk mark 'defective brake' when he went to examine the car; that it was marked on the end of the car, and on both sides."

After the train was cut, and space left between the cars that were pulled away and the defective car, Brown had no reason to believe that the former would be allowed to run back upon him. On the contrary, when the train was cut he had the assurance of the conductor that the cars pulled ahead would be left standing where they were after the cutting of the train had been accomplished.

The conductor, a witness for the defendant company, gave this account of the affair: "He was in the employ of the defendant, the Baltimore and Potomac Railroad Company, as a conductor in the freight yard in this city; had been so employed by the defendant in this freight yard for about twelve years; was there at the time of the accident, running with the shifting engine No. 327; that on the night of the 17th of March, 1887, the night of the accident, he was engaged in the 'Jersey yard' in shifting cars; that they got down to the Jersey yard about 9.55 o'clock in the evening, and took down with them about twenty-five cars, which they first shifted around where they belonged; that it took them about half an hour to dispose of those cars; that they went over on to the other side of the yard to shift the fast freight which was coming in from the North; that said train was brought in by engine No.

Statement of the Case.

307 and placed on No. 1 track; that said fast freight train arrived after they got down to the Jersey yard about ten or fifteen minutes; that they went to work upon said train to get out such cars as were to go South on the fast freight; that there were not over six cars in the said freight train to go South; that the cars which were for Washington were put over on another track; that then Robert A. Brown, the deceased, told them that they had a broken bull-nose down there which he wanted to fix; that he asked the witness to pull the cars apart, and witness told him that he would go down there and pull them apart; that he went down there and pulled the cars apart; that witness told deceased he was not going to shift any more of those cars; that said cars were pulled apart to a distance of about forty feet; that brakeman Hillary pulled the pin and uncoupled the cars in the first instance, and that the witness ordered the cars to be cut loose; that at that time he was talking to Robert A. Brown, who was standing right where the cut was made; that after the pin was pulled the witness (Phillips) gave the signal to pull ahead, and then went up towards the engine; that he stopped the engine when Robert A. Brown, the deceased, said, 'That will do,' by giving the engineer the shut-off signal with his lamp by swinging it; that thereupon the engineer (Smith) called to him, and he went up towards the engine; that the engineer then said he had no more water to do any shifting with, and I told him I hadn't anything to do, and they were not going to do any more shifting on that train, and I asked him to take a load of stock from the lower end up to the warehouse and stop at Sixth Street and get water. He said: 'Well, I will try it.' So I said to brakeman Teiling, when I stopped talking to the engineer, 'How is it?' He said, 'All O. K.' I said, 'Go up and set this brake.' He got up and put it on. I told Mr. Brown, after I pulled the cars apart, that I was going to leave them standing there."

There was evidence tending to show that a full crew, with a shifting engine, in a yard is six men, an engineer, a fireman, a conductor, and three brakemen; and that on the night Brown was killed there were only two brakemen on the train.

Argument for Plaintiff in Error.

There was also evidence bearing upon the question whether the deceased was guilty of contributory negligence in not displaying a blue light while repairing the defective drawhead, in conformity, as the defendant claimed, with one of the printed rules of the company.

Mr. Enoch Totten for plaintiff in error.

I. The defendant was not guilty of negligence. If the brake was defective, which is not conceded, it was not the fault of the defendant. The defendant had employed a skilled and reliable man to inspect all cars and discover all defects, and this servant was on the ground at the proper time and actually inspected the train. So far as this case is concerned, this is all the law required the defendant to do.

A corporation must necessarily act through its agents. It was the duty of the plaintiff in error to employ a skilled man, or a man reputed to be skilful in the business, to inspect and repair its cars. When it had done this it had performed its whole duty as master.

II. The deceased was guilty of negligence.

The motion made by the counsel for the defendant at the close of the whole testimony should have been granted and a verdict directed in favor of the defendant, for the reason that the evidence plainly showed negligence on the part of the deceased.

The deceased himself had been directing the movements of the cars which afterwards struck him, and told the conductor of the switching engine to pull them away, and when this was done he immediately went between the two trains and proceeded to work on the stationary portion of the train with his back towards the cars which had been moved. The night was very dark, a snow-storm was raging with a violent wind. blowing, and the three cars were on a steep grade. He knew that the cars were to be left where they had been stopped by his order, and that they were heavily laden. He must have known that there was great danger in the position in which he had placed himself. He neglected to display his blue

Argument for Plaintiff in Error.

lights; this was gross carelessness and a plain violation of the rules and regulations of the company and of his special orders. If he had displayed a blue light, as he was bound to do, before beginning his work on the train, no injury could have occurred to him. The conductor undoubtedly supposed that the deceased would wait until the engineer had got away with his engine, and that he would then hang out his lights for his own protection. If he had displayed them at once, the conductor would have known he was at work and would have been guided in his movements by the rules and regulations. The deceased was thus doubly guilty of negligence. He carelessly placed himself in a place of danger, and the consequences cannot be charged to the defendant. Southern Pacific Co. v. Seley, 152 U. S. 145; Elliott v. Chicago, Milwaukee &c. Railway, 150 U. S. 245; Tuttle v. Detroit &c. Railway, 122 U. S. 189; Railroad Co. v. Houston, 95 U. S. 697; St. Louis & San Francisco Railway v. Schumacher, 152 U. S. 77.

There is another aspect of this case which was disregarded by the court on the trial. The plaintiff's intestate was employed, and it was his business, to deal with broken and disordered cars. He must, therefore, be held to have knowledge of the broken brake, whether he actually knew its condition or not. It appears that he did actually make at least a partial inspection, as he discovered the broken bull-nose, which he undertook to repair. He should have discovered the broken brake, if it was broken. The car with the alleged broken brake was within two car-lengths of the broken bullnose. Although it is ordinarily the duty of railroad companies to furnish reasonably safe appliances, cars, and machinery for their employés, and in default thereof they are liable for injuries resulting from such default, yet this rule of law does not apply to cases where employés and servants of railroad companies are engaged in repairing damaged cars. By his employment to handle damaged cars the deceased assumed the risk incident to the enhanced danger of this service, and the law presumes that he was paid for it. Yeaton v. Boston & Albany Railroad, 135 Mass. 418; Tuttle v. Detroit &c.