Opinion of the Court. while he endeavored, in obedience to orders, to couple two cars that had broken apart in the night time while under way. It appeared that the cars were not provided with proper bumpers, and the absence of such bumpers was the cause of the injuries inflicted upon the brakeman. The Court of Appeals of New York said: "The defect was an obvious one, easily discoverable by the most ordinary inspection, and it would seem to be the grossest negligence to put such cars into any train, and especially into a train consisting of cars of different gauge. But these two cars did not belong to the defendant. They belonged to other companies, and came to it loaded, and it was drawing them over its road to their destination. They were in good repair, and the defects were in their original construction, they being just as they were originally made. The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defects in their structure, and that the plaintiff, upon entering its employment, assumed all risks from such defects." After a review of some of the cases, the court proceeded : "It will thus be seen that the utterances of judges as to the responsibility of one company for the defective cars of another company drawn over its road are not entirely harmonious, and we think all the authorities hold that the company drawing the cars of another company over the road owes, in reference to such cars, some duty to its employés. It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much at least is due from it to its employés. The employés can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. The rule : Opinion of the Court. imposing this responsibility is not an onerous or inconvenient or impracticable one. It requires, before a train starts, and while it is upon its passage, the same inspection and care as to all the cars in the train.” In a later case. Goodrich v. N. Y. Central & Hudson River Railroad, 116 N. Y. 398, 401,—the same principle was announced, the court saying: "It was decided in Gottlieb v. N. Y., L. E. & W. R. R. Co., 100. N. Y. 462, that a railroad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars; that it owes this duty as master, and is responsible for the conquences of such defects as would be disclosed or discovered by ordinary inspection; that when cars come in from another road which have defects, visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them. This duty of examining foreign cars must obviously be performed before such cars are placed in trains upon the defendant's road or furnished to its employés for transportation. When so furnished the employés whose duty it is to manage the trains have a right to assume that, so far as ordinary care can accomplish it, the cars are equipped with safe and suitable appliances for the discharge of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer." The defendant, in one of its requests for instructions, assumed what the law will not sanction, that the defendant was under no duty to ascertain the condition of cars belonging to another company which constitute a part of its train, and which are to be handled by its employés. We are of opinion that sound reason and public policy concur in sustaining the principle that a railroad company is under a legal duty not to expose its employés to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted into its train. 5. The fifth assignment relates to so much of the charge of the court as is set forth in the thirteenth and fifteenth bills of exceptions. It is sufficient to say that the exception, in each instance, was in gross to a series of propositions, some of Opinion of the Court. which, at least, were clearly right. Neither exception can be regarded. Beaver v. Taylor, 1 Wall. 637; Moulor v. Am. Life Ins. Co., 111 U. S. 335, 337; Conn. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 261; Burton v. West Jersey Ferry Co., 114 U. S. 474, 476. 6. The sixth assignment of error relates to the following part of the charge to the jury: "Now, manifestly, you cannot estimate in dollars and cents exactly what the damages are in a case of this kind, if there be any at all. That is not possible. But you may and you should take into consideration the age of the man, his health and strength, his capacity to earn money as you discover it from the evidence, his family- who they are and what they consist of and then, gentlemen, from all the facts and all the circumstances, make up your mind how much this family, if anything, probably lose by his death, and that would be how much had this family a reasonable expectation of receiving; how much had they a reasonable. expectation of receiving while he lived, if he had not been killed." It is suggested by counsel that this charge was in conflict with the decision of this court in Pennsylvania Co. v. Roy, 102 U. S. 451, 459, which was an action to recover damages for personal injuries caused by the negligence of the defendant. It was there said: "There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children a son ten years of age, and three daughters of the ages, respectively, of fourteen, seventeen, and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It cer tainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to Opinion of the Court. arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff's family it is impossible to determine with absolute certainty, but the reasonable presumption is that it had some influence upon the verdict." The question of damages in the present case must be determined by the special statute under which the plaintiff sued and not by the general, recognized principles in the law of torts. In Roy's case the plaintiff himself was the party injured. He sued for compensation in damages for the personal injuries he received. Here, death ensued from the wrongful act of the defendant. So the jury found. And the plaintiff is the personal representative of the party injured. The statute giving the remedy expressly excludes the creditors of the deceased from any interest in the recovery, and declares not only that the judgment shall inure exclusively to the benefit of his family, but that the damages, not exceeding ten thousand dollars, shall be assessed "with reference to the injury "done" to the widow and next of kin of such deceased person." Under such a statute, it is entirely proper that the jury should take into consideration the age of the deceased, his health, strength, capacity to earn money, and family. The injury done to a family consisting of a widow and helpless young children, who depended for support entirely upon the labor of a husband and father whose death was caused by the wrongful act of others, is much greater than would be done to any "next of kin" able to maintain themselves and who have never depended, and had no right to depend, upon the labor or exertions of the deceased for their maintenance. 7. The seventh assignment of error is that the judgment of the general term, affirming the judgment of the special term, was erroneous in declaring that the plaintiff recover "as in his declaration claimed." The judgment in the special term was for eight thousand dollars. Although the amount claimed in the declaration was $10,000, the affirmance of the judgment Syllabus. of the special term is necessarily limited to the amount of the judgment so affirmed; and the words "as in his declaration claimed," carelessly put into the final order of the general term, cannot have the effect to increase the sum actually recovered in the special term. If the attention of the general term had been called to the form of the judgment it would have been put in proper shape. Such an inaccuracy in form is not sufficient ground for reversal. The judgment to be enforced is the one rendered in the special term. We perceive no error in the record to the prejudice of the defendant, and the judgment is Affirmed. PULLMAN'S PALACE CAR COMPANY v. METROPOLITAN STREET RAILWAY COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 146. Argued January 11, 14, 1895. — Decided March 4, 1895. In June, 1887, the Pullman Car Company of Chicago wrote to the Metropolitan Street Railway Company of Kansas City, proposing to build for it 25 cable cars according to specifications attached, and to deliver them free on board the Pullman Junction in Illinois, the cars to be inspected and accepted at the Pullman works, and to be paid for on delivery, the written acceptance of the railway company to constitute a contract mutually binding. Nothing was said about brakes except that they were to be operated by gripmen with lever, both trucks. The railway company accepted in writing. The details of construction were then considered and agreed upon between the two companies. Nothing further was said about brakes except that the railway company required them to be heavy and extra powerful. Brakes were then designed by the car company, but no designs of them were furnished to the railway company. When 12 cars were finished, but before any had been delivered, the agent of the railway company went, at the request of the car company, to the shops of the latter in Illinois, and there made a thorough examination of the 12 cars, working the brakes and carefully watching their operation. He expressed himself entirely satisfied with them, and ordered the others to be finished in the same way, and all to be forwarded. This |