Opinion of the Court.

the orphans' court do not even affect the jurisdiction of the Court of Chancery of New Jersey over the settlement of estates. Frey v. Demarest, 1 C. E. Green, (16 N. J. Eq.) 236; Coddington v. Bispham, 9 Stewart, (36 N. J. Eq.) 224, 574; Houston v. Levy, 17 Stew. (44 N. J. Eq.) 6. Certainly, no such statutes can defeat or impair the general equity jurisdiction of the Circuit Court of the United States to administer, as between citizens of different States, the assets, of a deceased person within its jurisdiction. Green v. Creighton, 23 How. 90; Payne v. Hook, 7 Wall. 425; Lawrence v. Nelson, 143 U. S. 215.

The defendant, as administrator with the will annexed of George Hayes, having received money from the income and sale of his real estate, and settled his account therefor in the court which appointed him, and having, without any order of court, and without right, and with notice of Pratt's claim, paid the money to the Hospital of St. Barnabas, taking from that corporation a bond of indemnity, was rightly held liable to account for it, with interest from the date when he so settled his account after having determined so to pay it.

There being no one in New Jersey having any right to or claim upon this fund, and no special reason being shown for administering it in New Jersey, it should, upon familiar principles, be transmitted to the executor appointed at the testator's domicil for distribution. Wilkins v. Ellett, 9 Wall. 740, 742; Harvey v. Richards, 1 Mason, 381, 412, 413; Normand v. Grognard, 2 C. E. Green (17 N. J. Eq.) 425, 428.

Pratt, being the executor appointed in the State of the testator's domicil, and the trustee charged with the administration of the charitable trust, is the only person entitled to maintain this suit. The joinder of the Hayes Mechanics' Home as a plaintiff was unnecessary, and perhaps improper; but not having been objected to, by demurrer or otherwise, in the court below, it affords no ground for refusing relief. The decree of the Circuit Court is irregular in that it directs payment to be made to Pratt as treasurer of the Hayes

Statement of the Case.

Mechanics' Home, instead of to him as executor, and is therefore to be amended in that particular, and,

So amended, affirmed.

MR. JUSTICE SHIRAS, not having been a member of the court when this case was argued, took no part in its decision.

WASHINGTON AND GEORGETOWN RAILROAD COMPANY v. HARMON'S ADMINISTRATOR.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 116. Argued January 18, 19, 1893. Decided March 6, 1893.

In an action against a common carrier to recover damages for personal injuries, if the facts relating to contributory negligence are disputed, that question should be submitted to the jury; and, if the jury find for the plaintiff, the court is not required, in the exercise of judicial discretion, to set the verdict aside.

A railway company being bound to deliver a passenger, its failure to stop long enough to enable him to alight with safety is a neglect of duty which involves liability for injuries resulting therefrom.

When the evidence justifies a finding that future damages will result from an accident to a passenger caused by the negligence of a common carrier, the jury may estimate and include such damages in their verdict.

In the District of Columbia a judgment in an action of tort does not bear interest.

In this case the only error being in an allowance of interest, the court orders the judgment to be affirmed if the interest be remitted; otherwise to be reversed for that error.

THIS was an action brought by John H. Harmon to recover damages for a personal injury to him through the negligence of the railroad company. The Supreme Court of the District in special term rendered judgment on the verdict of the jury, on December 1, 1887, for $6500, and this judgment was affirmed by the court in general term on June 12, 1889, and judgment rendered against the railroad company and its

Statement of the Case.

surety on appeal for the amount of the judgment of the court in special term, with interest thereon from December 1, 1887, when it was entered below, until paid, with costs. To review this judgment this writ of error was brought. The case is reported in 18 Dist. Col. 255.

The evidence is comprehensively given by James, J., delivering the opinion, as follows:

"The plaintiff testified, in his own behalf, that on the evening of the 28th of April, 1882, at about nine o'clock, he took passage in one of the defendant's cars on Pennsylvania Avenue to go to his home on 19th street; that he took his seat about two-thirds of the distance from the rear platform; that at or near 19th street he signalled to the conductor to let him off; that the conductor was then inside the car figuring up his accounts under the light; that, upon receiving the signal, the conductor rang the bell and the car began to slow up, and, as he supposed, was about stopping; that there were not many passengers inside, but the platform was crowded; that he made his way through the crowd on the platform and down on to the step which was occupied by a man and a boy, who held on to the railings on each end of the steps; that the car was, at that time, almost at a standstill; that he could neither swing off nor get back; that just as he had gotten on the step the bell was rung and the car started, and he was thereby thrown off on to the pavement and injured. He further stated that the conductor did not go out to the platform to assist him to get off. On cross-examination he said that, at the time of his attempting to get off, there were only six or eight passengers inside of the car, while the platform was so crowded that the man and boy referred to had to stand upon the step.

"On the part of the defendant the conductor testified that the plaintiff was in the habit of riding on defendant's cars and of getting off while the car was in motion; that when the plaintiff signalled on the night in question he, the conductor, rang the bell and the car began to slow; that he was then standing on the rear platform; that he and a small boy were the only persons then on the platform; that the plaintiff

Statement of the Case.

'without waiting for the car to stop, after so signalling the conductor, immediately went out on the rear platform and stepped down upon the step, at the same time holding on to the iron railing on the car, and while the car was still in motion and moving at a slow rate of speed, nearly at a standstill, the plaintiff stepped off, and after he had let go of the car he, the conductor, pulled the bell to go on again, and as the plaintiff turned he fell; . . . that he did not ring the bell for the car to start until after the plaintiff had stepped on the street and let go of the car.'"

Upon the trial, the court gave the following instructions requested on behalf of the plaintiff :

"If the jury believe from the evidence that the conductor, at the request of the plaintiff, rang the bell to stop the car for him to get off, and that the car thereupon slowed, and that while plaintiff was waiting for the car to stop, and before it had fully stopped, the car started suddenly forward through the negligent act of the conductor or driver, and that the plaintiff was thereby and without any negligence on his part thrown from the car and injured, then he is entitled to recover."

"If the jury believe from the evidence that the conductor, at the request of the plaintiff, rang the bell to stop the car for plaintiff to get off, and that thereupon the car slowed and the plaintiff went out on the platform and, while the car was moving very slowly, stepped down on the step of the car to be in readiness to step off when the car should fully stop, and that instead of stopping fully the car moved suddenly forward in consequence of the negligent act of the conductor or driver and he was thereby thrown off and injured, it would be for the jury to say, under all the facts and circumstances of the case shown in evidence, whether the conduct of the plaintiff caused or contributed to his injury; and if they further believe that the plaintiff did under the circumstances what an ordinarily prudent man would have done, then he was not guilty of contributory negligence and would be entitled to recover."

"If the jury find for the plaintiff they will find for him such an amount of damages as will fully compensate him for the

Statement of the Case.

suffering of mind and body inflicted upon him by his injury, for the personal inconvenience, the loss of time, and the expenses of cure that naturally and proximately resulted from the injury he suffered; and if they find that the injuries sustained by the plaintiff are permanent they will also find for him such damages as will fully compensate him for the suffering of mind and body, the personal inconvenience, and the loss of time that he will suffer in the future. In determining this as to the future they will consider plaintiff's bodily vigor and age as shown by the evidence adduced."

The defendant prayed the court to instruct the jury as follows:

"The burthen of proof is upon the plaintiff to satisfy the jury that he sustained the injury which is the subject of this action by reason of the negligence of the defendant and without contributory negligence on his part."

But the court refused to give the instruction as prayed, and modified it by striking out the words "and without contributory negligence on his part," and gave it as modified.

Defendant asked the court to give the following instruction: "If the jury shall find that the platform was crowded, and that the plaintiff made his way through the crowd and got down from the platform and on to the step below and stood on the step without any means of support, with a person on each side and a crowd behind, and whilst the plaintiff was so standing a sudden movement of the car caused the plaintiff to fall from the step on to the pavement, whereby he received the injury alleged, then it will be for the jury to determine from the evidence whether or not the plaintiff is chargeable with contributory negligence through such acts; and if the jury shall find that he is so chargeable, then the plaintiff is not entitled to the verdict."

But the court refused to give the same without modification, and modified it by inserting after the word "chargeable," in the last line of the instruction, the following: "And that such negligence contributed to the injury."

Defendant also asked the court to give several instructions, which need not be repeated, and which were refused