that a railroad company is under a legal duty not to expose its employes to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted into its train.

tion. They were in good repair, and the defects were in their original construction, they being just as they were originally made, The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defects in their struc- 5. The fifth assignment relates to so much ture, and that the plaintiff, upon entering its of the charge of the court as is set forth in the employment, assumed all risks from such de-thirteenth and fifteenth bills of exceptions. It fects.' After a review of some of the cases, is sufficient to say that the exception, in each the court proceeded: "It will thus be seen instance, was in gross to a series of propositions, that the utterances of judges as to responsi- some of which, at least, were clearly [92 bility of one company for the defective cars of right. Neither exception can be regarded. another company drawn over its road are not Beaver v. Taylor, 68 U. S. 1 Wall. 637 entirely harmonious, and we think all the au- [17: 601]; Moulor v. American L. Ins. Co. 111 thorities hold that the company drawing the U. S. 335, 337 [28: 447, 448]; Connecticut Mut. cars of another company over the road owes, L. Ins. Co. v. Union Trust Co. of New York, in reference to such cars, some duty to its em 112 U. S. 250, 261 [28: 708, 712]; Burton v. ployees. It is not bound to take such cars if West Jersey Ferry Co. 114 U. S. 474, 476 they are known to be defective and unsafe.[29: 215, 216]. Even if it is not bound to make tests to dis- 6. The sixth assignment of error relates to cover 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 inspectiou as master, and is at least responsible for the consequences of such defects as would be disclosed or discov ered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defect or refuse to take such cars-so much at least is due from it to its employes. The employes can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. The rule 91]*imposing this responsibility is not an onerous or inconvenient or impractical 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.'

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 rea sonable 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 a later case - Goodrich v. New York Cent. in Pennsylvania Co. v. Roy, 102 U. S. 451 & H. R. R. Co. 116 N. Y. 398, 401, 5 L. R. A. [26: 141], which was an action to recover dam750, the same principle was announced, the ages for personal injuries caused by the negli court saying: "It was decided in Gottlieb v. gence of the defendant. It was there said: New York, L. E. & W. R. Co. 100 N. Y. 462, "There was, however, an error committed that a railroad company is bound to inspect the upon the trial, to which exception was duly cars of another company used upon its road, taken, but which does not seem to have been just as it would inspect its own cars that it remedied by any portion of the charge appearowes this duty as master, and is responsible for ing in the bill of exceptions. The plaintiff was the consequences of such defects as could be permitted, against the objection of the defend disclosed or discovered by ordinary inspection; ant, to give the number and ages of his children that when cars come in from another road-a son ten years of age, and three daughters which have defects, visible or discernable 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 employes for transportation. When so fur nished the employes whose duty it is to manage the trains bave 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.'

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 certainly had no le gitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependant 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 *arouse the[93 sympathies of the jury, and to enhance the damages beyond the amount which the law perThe defendant, in one of its requests for in-mitted, that is, beyond what was, under all the structions, assumed what the law will not circumstances, fair and just compensation to sanction, that the defendant was under no duty the person suing for the injuries received by to ascertain the condition of cars belonging to him. How far the assessment of damages was another company which constitute a part of its controlled by this evidence as to the plaintiff's train, and which are to be handled by its em- family it is impossible to determine with absoployes. lute certainty, but the reasonable presumption is that it had some influence upon the verdict."

We are of opinion that sound reason and public policy concur in sustaining the principle

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 re-
ceived. 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 enure
exclusively to the benefit of his family, but that
the damages, not exceeding ten thousand dol-
lars, shall be assessed "with reference to the
injury" done "to the widow and next of kin
of such deceased person." Under such a stat-
ute, it is entirely proper that the jury should
take into consideration the age of the deceased,
his bealth, strength, capacity to earn money,
and family. The injury done to a family con-
sisting of a widow and helpless young children,
who depended for support entirely upon the
labor of a husband and father whose death was Argued Jan. 11, 14, 1895.
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.

can be supplied at a small expense and the
seller has agreed to supply them.

2. In an action for the purchase price of cars man

ufactured for and sold to the defendant the damages which may te recouped by defendant for defects in the cars which are insufficient to rescind the sale, are the reasonable costs of supplying such defects and not the entire purchase price.

3. The title to cars purchased and agreed to be inspected and accepted at the manufacturer's works and delivered free on board the cars, passes to the purchaser on such inspection and acceptance as to those thus accepted, and as to the remainder finished in the same way, when delivered free on board the cars to be forwarded to the purchaser.

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 94] *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 af firmed.

4.

Where the U.S. circuit court on the trial of an action at law before it on the waiver of a jury makes a special finding of facts, on the issues, and gives an erroneous judgment thereon, this court, on reversing the judgment can only direct such judgment as is authorized by the facts specially found by the circuit court.

[No. 146.]

4th, 1895.

Decided March

error to the Circuit Court of the United

to review a judgment in favor of the defendant
in an action brought by the Pullman Palace
Car Company, plaintiff, to recover from the
Metropolitan Street Railway Company the sum
of $54,219.70, with interest, alleged to be due to
plaintiff under a certain contract for the con-
struction of cars for the defendant; the judg-
ment further provided that the defendant re-
cover from the plaintiff the amount paid by
defendant for freight on the cars. Reversed,
with direction to enter judgment in favor of
plaintiff for $47,500, with certain interest.

The facts are stated in the opinion.
Messrs. Gardiner Lathrope, William
Burry and John S. Bunnells, for plaintiff in
error:

The contract governs the rights of the parties; it is complete within itself; it is clear, explicit and unambiguous; it is not void as against public policy; it is not tainted by fraud; it cannot be varied or added to by parol; no provision can be interpolated therein aside from what is expressly stipulated.

Ingle v. Jones, 69 U. S. 2 Wall. 1 (17: 762); De Witt v. Berry, 134 U. S. 306 (33:896); Seitz v. Brewer's Refrigerating Mach. Co. 141 U. S. 510 (35: 837); Sanders v. MacClean, L. R. 11 Q. B. THE PULLMAN PALACE CAR COM Div. 336; Whitmore v. South Boston Iron Co.

PANY, Pl. in Err.,

v.

THE METROPOLITAN STREET RAIL-
WAY COMPANY.

(See S. C. Reporter's ed. 94-112.) Rescinded contract-damages for breach of contract-when title passes-erroneous judgment.

2 Allen, 52, 10 Am. Eng. Enc. Law, p. 110,

note 1.

By the contract the cars were to be inspected and accepted by the defendant at the plaintiff's works. This condition the plaintiff bad a right to impose. By its acceptance the defendant agreed to pass upon the cars as to whether they complied with the contract or not, when they were completed and ready for delivery.

Carson v. Baillie, 19 Pa. 375, 57 Am. Dec.

1. A sale of cars manufactured for and put to use by the purchaser, cannot be rescinded by the pur-659; Matthews v. Hartson, 3 Pittsb. 86; Lord v. chaser by reason of the insufficiency of the brakes, discovered by use, where sufficient brakes NOTE.-A8 to stated sum in contract; whether penalty or liquidated damages, see note to Taylor v. sandford, 5: 384.

Grow, 39 Pa. 88, 80 Am. Dec. 504; Nofsinger v. Ring, 71 Mo. 149, 36 Am. Rep. 456; Black River Lumber Co. v. Warner, 93 Mo. 374; McCormick v. Sarson, 45 N. Y. 267, 6 Am. Rep. 80; New York State Monitor Milk Pan Co. v.

Remington, 41 Hun, 218; Barnard v. Kellogg, | (6: 595); Lyon_v. Bertram, 61 U. S. 20 How. 77 U. S. 10 Wall. 383 (19: 987).

Under the express contract between the parties in this case, providing for inspection and acceptance at plaintiff's.works, the implied warranty of fitness to be determined by a test on defendant's line is excluded, notwithstanding that plaintiff is the manufacturer.

Smith, Personal Property, 183; Benjamin, Sales, § 661; 1 Parsons, Contracts (7th ed.) pp. 583, 584; Biddle, Chat. War. § 167; Story, Sales, 371; Barnett v. Stanton, 2 Ala. 195; Tiedeman, Sales, § 187; Hare, Contracts, 469; Bluett v. Osborne, 1 Starkie, 384; Jones v. Just, L. R. 3 Q. B. 197; Getty v. Rountree, 2 Chand. (Wis.) 28, 54 Am. Dec. 138; Hood v. Blouch Bros. 29 W. Va. 244; Eagan v. Call, 34 Pa. 236, 75 Am. Dec. 653; Cram v. Gas Engine & P. Co. 75 Hun, 316; Dushane v. Benedict, 120 U. S. 630 (30: 810); De Witt v. Berry, 134 U. S. 306 (33: 896); Van Winkle v. Crowell, 146 U. S. 42 (36: 880); Sheffield & B. Coal, 1. & R. Co. v. Gordon, 159 U.S. 285 (38: 164); Parkinson v. Lee, 2 East, 314; Shepherd v. Pybus, 3 Man. & G. 868.

Where articles are ordered of a manufacturer, and a provision inserted in the contract that when the articles are made they shall be inspected and accepted by the buyer, the same rule obtains upon such inspection as in cases where specific articles are offered for sale. That rule is caveat emptor.

In the case at bar, the cars having been manufactured and appropriated to the contract by the plaintiff, and defendant having assented to such appropriation by accepting the same after inspection, they became its property upon shipment pursuant to its order, and plaintiff is not responsible for any defects that may thereafter have developed.

Comyn, Contracts, 143; Miller, Conditional Sales, § 49; Deming v. Foster, 42 N. H. 165; Mason v. Chappell, 15 Gratt. 572; Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; At kinson v. Bell, 8 Barn. & C. 277; Clarke v. Spence, 4 Ad. & El. 448; Wilkins v. Bromhead, 6 Man. & G. 963; Young v. Matthews, L. R. 2 C. P. 127.

The nature of the defect or inability in the brakes was one which could have been discovered by inspection and test, if proper care had been exercised.

1 Chitty, Contracts (11th Am. ed.) 1074; Hyatt v. Boyle, 5 Gill. & J. 110, 25 Am. Dec. 276; Neaffie v. Hart, 4 Lans. 4; Hart v. Wright, 17 Wend. 267.

Not only were the inspection and acceptance of the cars by the defendant at the plaintiff's works complete, but their delivery by plaintiff free on board the cars effected a perfect trans fer of the title to the defendant.

Hare v. Browne, 4 Hurlst. & N. 822; Stock v. Inglis, L. R. 12 Q. B. Div. 564; The Mary and Susan, 14 U. S. 1 Wheat. 25 (4: 27); Halliday v. Hamilton, 78 U. S. 11 Wall. 560 (20: 214).

The defense of implied warranty of the plaintiff as the manufacturer of the cable cars that they were reasonably fit for the purposes for which they were made, did not justify the defendant in rejecting the cars, but would only have entitled it to recoup its damages in defense of this suit.

Thornton v. Wynn, 25 U. S. 12 Wheat. 183 157 U. S. U. S., Book 39

149 (15: 847): Pope v. Allis, 115 U. S. 363 (29: 393); Sedgwick, Damages (8th ed.) § 762; Marsh v. McPherson, 105 U. S. 709 (26: 1139); Stillwell & B. Mfg. Co. v. Phelps, 130 U. S. 520 (82: 1035); Kase v. John, 10 Watts, 107, 36 Am. Dec. 148; Parsons v. Sexton, 4 C. B. 899.

The interpretation which the parties themselves put upon the contract shows that they both considered that the title to the cars had passed, and that the plaintiff had a right to the contract price.

Fisher v. Samuda, 1 Campb. 190; Maberly v. Sheppard, 10 Bing. 99; Chapman v. Morton, 11 Mees. & W. 539; Lawrence v. Dale, 3 Johns. Ch. 23; Beck v. Sheldon, 48 N. Y. 365; Grymes v. Sanders, 93 U. S. 55 (23: 798).

The acts of defendant are conclusive of its election to treat the cars as its own property, and constitute an absolute bar to a rescission. Beed v. Blandford, 2 Younge & J. 278; Beaumont v. Brengeri, 5 C. B. 301; Street v. Blay, 2 Barn. & Ad. 456; Clarke v. Dickson, 96 C. B. 148; Hunt v. Silk, 5 East, 449; Perley v. Balch, 23 Pick. 283, 34 Am. Dec. 56; Barnett v. Stanton, 2 Ala. 183; Magee v. Billingsley, 3 Ala. 679; Boothby v. Scales, 27 Wis. 626; Hoadley v. House, 32 Vt. 179, 76 Am. Dec. 167; Shaeffer v. Sleade, 7 Blackf. 178; Brown v. Foster, 108 N. Y. 387.

Messrs. Wallace Pratt and Frank Hagerman, for defendant in error:

For all the purposes of review in this court the facts as found and stated by the court below are conclusive.

U.S. Rev. Stat. § 649; Dickinson v. Planters Bank of Tennessee, 83 U. S. 16 Wall. 257 (21: 279); Town of Ohio v. Marcy, 85 U. S. 18 Wall. 552 (21: 813); Saulet v. Shepherd, 71 U. S. 4 Wall. 502 (18: 442); Phænix Ins. Co. v. Copelin, 76 U. S. 9 Wall. 461 (19: 739); Mercantile Mut. Ins. Co. v. Folsom, 85 U. S. 18 Wall, 237 (21: 827); Springfield, F. & M. Ins. Co. v. Sea, 88 U. S. 21 Wall. 158 (22: 511); United States v. Dawson, 101 U. S. 569 (25: 791); Tyng v. Grinnell, 92 U. S. 467 (23: 733); Martinton v. Fairbanks, 112 U. S. 674 (28: 864); Fort Worth City Co. v. Smith Bridge Co. 151 U. S. 294 (38: 167).

No rulings having been made by the court below and excepted to upon objections to the admission or exclusion of evidence, the only question for review by this court is as to the sufficiency of the facts found to support the judgment.

U. S. Rev. Stat. § 700; Boogher v. New York L. Ins. Co. 103 U. S. 90, 97 (26: 310, 312).

There was an implied warranty on the part of the plaintiff that the cars, when manufactured and applied to the use contemplated by defendant and understood by plaintiff at the time of making the contract, should be reasonably fit for that use.

Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 (28: 86); Florida R. Co. v. Smith, 88 U. S. 21 Wall. 255 (22: 513); Reynolds v. Palmer, 21 Fed. Rep. 433; Craver v. Hornburg, 26 Kan. 94; Newmark, Sales, SS 351, 352; 5 Wait, Act. & Def. SS 562-565; Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290; 1 Parsons, Contracts (5th ed.) 586; 2 Benjamin, Sales (Corbin's ed.) 966, p. 843; Best v. Flint, 58 Vt. 543, 56 Am. Rep. 570; Downing v. Dearborn, 77 Me. 457; 40

633

Pullman, the general agent of the Pullman | the seats, etc. He was at the office of the dePalace Car Company, at Pullman, Illinois: fendant for some time, had access to the "We write to say that we are now ready to plans and profiles of the road, and while in take cars for our Wyandotte and Twelfth Kansas City certain specifications were apstreet lines, and should be glad to have you | proved by defendant's engineers and were call on us at your convenience." Upon re-submitted to him. These specifications inceiving this letter Pullman, who had a general creased the length of cars to 38 feet "over knowledge of the grades and curves of the de- all," and prescribed their width, width of fendant's line, went to Kansas City to discuss floor frame, height from top of track to top the proposed contract. From Kansas City he of floor, distance between center of trucks, went to Chicago, and from the latter place, wheel base of truck, distance from front of under date of June 21st, 1887, sent to the car to center of forward truck, length of president of the defendant company a letter close part of car, length of open portion, as written by the general manager of the plaintiff, well as of rear platform, size of wheels and under date of June 21st, 1887, as follows: "I sixteen cross seats to be fixed as decided. beg to enclose herewith contract with specifications attached, executed by me in duplicate, for the building of twenty-five combination closed and open street cars for your company. Kindly sign and return to me one copy of contract for our files. You will notice in the specifications that the space for the lettering has been left blank, and I would be glad if you would indicate on the specifications returned the lettering you desire applied to the cars."

The contract referred to in that letter was in these words: "Pullman's Palace Car Company will build for the Metropolitan Street Railway Company twenty-five combination closed and open cable cars, as per general specifications hereto attached and made a part of this agree ment, and deliver the same f. o. b. [free on board] Pullman Junction, Kensington, Ill., on or before October 10th, 1887, delays by fires, strikes, and unavoidable hindrances excepted, for the sum of two thousand dollars each. Terms, cash on deliveries. Cars to be inspected and accepted at our works. Your 97] written acceptance hereof *will constitute a contract mutually binding upon both companies." To this contract were appended the above general specifications. These specifications called for cars in length, 34' 9" "over all," in width 6' 6" or more over sides. They contained nothing relating to brakes except the following: "Brakes to be operated by gripmen, with lever, both trucks.'

On the 27th of June, 1887, defendant's chief engineer wrote to the plaintiff as follows: Your letter of the 21st, enclosing contracts and specifications in duplicate for the twentyfive combination cars for our Twelfth street line, addressed to our president, Morse, has been referred to us for attention in his absence, and we enclose you with this one copy duly executed by us on behalf of the company. Will you kindly advise about when we may expect to get the general plans which Mr. Pullman, when here, promised to let us have."

The plaintiff then proceeded with the work of construction. The defendant gave no direction in relation to the brakes on the cars otherwise than that they should be extra heavy and extra powerful; nor were any plans or specifications for brakes *furnished to [98 the defendant during their construction. The brake put upon the cars was designed and constructed by Twyman, plaintiff's engineer.

In December, 1887, in response to plaintiff's request that defendant send one of its employes to Pullman to inspect the cars, Lawless, defendant's superintendent, went there for that purpose. Ten or twelve cars were then shown to him as completed and standing in the shops of plaintiff on the floor where they were run out. Lawless made a thorough examination of them, inside and out, and upon examining the brakes by having them worked from within, and observing their operation and application while under and at the side of the car, announced himself as satisfied with them, and requested the representative of the plaintiff present to finish the others up in the same way and forward them. No further request was made by Lawless for testing the cars, and no other facilities were offered by the plaintiff for making such test and examination.

The first five cars were shipped by plaintiff February 24th, 1888. The next shipment, of eight cars, was on March 1st, 1888; the next, of two cars, March 17th, 1888. Five cars were shipped March 27th, 1888, and the remainder on the 30th day of March, 1888.

When the cars reached Kansas City, they were stored in defendant's power-house, because the eastern extension of its line was not then in readiness for operation. They were taken into the house by passing them over a curved track from the street. This curve was 30 foot radius. When the first lot of cars were being passed around this curve it was found that the wheels "bound against the sills." Thereupon defendant's engineer Between the first and sixteenth of July, telegraphed plaintiff as follows: "Forward 1887, the plaintiff's engineer, Twyman, vis- truck of cars will not pass around 30 foot ited Kansas City, stating that the general pur-radius curve. Lengthen stay-chains and cut pose of his visit was to determine upon the away lower corner of middle sills." To this general features of the cars, the shortest telegram plaintiff answered: Telegram recurve and other physical conditions of the ceived. Will make alterations requested." road, the radius of the shortest curve a car would have to go around, and to arrange with reference to the outside width and the extra length over all, the relative position of the trucks, the height of the wheels, the steps and the seats, and the distance between

་་

On the 22nd of March, 1888, before all the cars had been shipped, the east end of the Twelfth street line was completed so that a car could run over that part of the line. Defendant's superintendent took out one of the [99 cars for trial, when difficulty about the brakes