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 negli gence. 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.

Argument for Plaintiff in Error.

Railway, supra; Chicago & Northwestern Railway v. Ward, 61 Illinois, 130; Flannagan v. Chicago & Northwestern Railway, 45 Wisconsin, 98.

In the next place, if this accident was caused by the carelessness of the trainmen in charge of the work of switching cars in the yard, then the plaintiff cannot recover, because such trainmen were fellow-servants of the deceased. This has been settled recently by this court in the case of Northern Pacific Railroad v. Hambly, 154 U. S. 349. See also Randall v. B. & O. Railroad, 109 U. S. 478; B. & O. Railroad v. Baugh, 149 U. S. 368; Tuttle v. Detroit &c. Railway, 122 U. S. 189; Quebec Steamship Co. v. Merchant, 133 U. S. 375, Bunt v. Sierra Bate Co., 138 U. S. 483; District of Columbia v. McElligott, 117 U. S. 621; Murphy v. N. Y. Cent. R. R. Co., 11 Daly, 122; Baltimore Elevator Co. v. Neal, 65 Maryland, 438; Besel v. N. Y. C. & H. R. Railroad, 70 N. Y. 171; Smith v. Potter, 46 Michigan, 258; Columbia & Xenia Railroad v. Webb, 12 Ohio St. 475; Mackin v. Boston & Albany Railroad Co., 135 Mass. 201.

III. At the close of the evidence the plaintiff's counsel requested two instructions, which were objected to by the defendant's counsel; they were granted by the court. They constitute the errors claimed in the 5th and 6th bills of exception (33, 34).

The criticism on these declarations of the law of the case is (1) that it is not for the plaintiff to object (he being in the place of the deceased in this suit), that the defendant failed to exercise reasonable care in keeping the brake in repair. It employed Brown himself, who was a proper man for that duty, to examine this brake and to repair it if it was in bad order. Having employed a competent man for that purpose, it did its whole duty. If there was negligence as to this brake, the negligence was the negligence of Brown. (2) Each of these instructions wholly ignores the important question of contributory negligence.

IV. The plaintiff having failed to prove negligence on the part of the defendant's other servants, he could not, under the pleadings, recover on the ground that the accident was caused

Argument for Plaintiff in Error.

by a defective brake. Mention of a defective brake will not be found in the declaration.

It was error to depart from the theory of the case set out in the declaration. The case was made to turn, on the trial, on the question as to whether or not the brake used to hold the three detached cars was defective or in bad order. This was not the case made by the plaintiff in his declaration; the pleadings exclude that view of the case.

Putting out of sight for the time the fact that the deceased was the person employed to discover and repair broken brakes, it will be observed that the court ignored the law as applicable to foreign cars. The evidence that this car with the alleged defective brake was a foreign car was very light; but what there was, if any, went to the jury.

A different responsibility is connected with such a car. A railroad company receiving a loaded car from another company is entitled to presume that such car had been properly constructed of suitable material, and had passed the inspection of some one of ordinary skill in such matters, and was reasonably fit for the use to which it was devoted when received. Ballou v. Chicago, Milwaukee &c. Railway, 54 Wisconsin, 267; Mich. Cent. Railroad v. Smithson, 45 Michigan, 212; Smith v. Patten, 46 Michigan, 258; Baldwin v. R. R. Co., 50 Iowa, 680; Davis v. Detroit & Milwaukee Railroad, 20 Michigan, 105; Mackin v. Boston & Albany Railroad Co., 135 Mass. 201.

V. The trial judge, in the oral instructions in reference to the duty of the corporation as to keeping brakes in good order, utterly ignored the distinction between warranting the good order and fitness of the brake for the service at all times, and exercising reasonable care and diligence in keeping it in good order.

It will be observed that the court impressed it upon the minds of the jury that the defendant was bound to see to it that this brake was in good working condition and sufficient to hold those three cars at the time. This was holding the defendant to a higher degree of care than the law requires. The rule is thus stated by this court in Washington & Georgetown Railroad v. McDade, 135 U. S. 554, 570: "Neither individuals

VOL. CLVII-6

Opinion of the Court.

nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employés. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service by providing them with machinery reasonably safe and suitable for the use of the latter."

VI. The trial justice also erred by instructing the jury that they might consider the "strength" of the deceased, in reference to his capacity to earn money; there was nothing in the evidence to show whether he was a strong man or otherwise.

The court also erred in the oral instructions to the jury on the subject of damages. The learned judge told the jury that they should take into consideration in estimating damages "his family- who they were and what they consist of." This instruction directed the jury to consider, first, who were the family, or, which is the same thing, what was the condition in life of his family, and, second, of what age and sex were the children.

The court has recently passed upon this question, and condemned a like ruling. Pennsylvania Company v. Roy, 102 U. S. 451.

Mr. Franklin H. Mackey for defendant in error.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

This suit was instituted under the act of Congress approved February 17, 1885, c. 126, 23 Stat. 307, providing:

"SEC. 1. That whenever, by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have

Opinion of the Court.

entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances. which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect, or default, causing such death, to the widow and next of kin of such deceased person: Provided, That in no case shall the recovery under this act exceed the sum of ten thousand dollars: And provided, further, That no action shall be maintained under this act in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party.

"SEC. 2. That every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured.

"SEC. 3. That the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions in force in the said District of Columbia."

The assignments of error in the brief filed by the plaintiff in error are seven in number, and cover all the material points in the case. We assume that any exceptions taken at the trial and not embraced by those assignments have been abandoned.

1. The first assignment of error is that the court below erred in refusing at the close of all the evidence to direct a verdict in favor of the defendant. It need only be said that the case was one peculiarly for the jury under proper instructions as to the law of the case. There was no reasonable or proper inference from the evidence, as matter of law, that would have justified the withdrawal of the case from the jury. Phoenix Ins. Co. v. Doster, 106 U. S. 30, 32; Del. & Lackawanna Railroad v. Converse, 139 U. S. 469, 472; Texas and Pacific Railway v. Cox, 145 U. S. 594, 606.