yield obedience, may be looked to as evidence of the actual power possessed by the agent.

The charge of the court did not require of appellant the exercise of that degree of care which it is necessary the carrier of passengers in vehicles intended for that purpose

cise ordinary

care.

shall use, but informed the jury that appellant Failure of serwould be liable only in the event appellee was law- vants to exerfully on the car, and while there injured by the failure of servants of appellant to use ordinary or reasonable care. The court further informed the jury that appellant would not be liable if the injury complained of resulted from the act of a fellow passenger or from unavoidable accident. The evidence tends to show that the hand car was running at an unusually rapid speed when the accident occurred, and that a temporary resting place for the legs or feet of those sitting on the front part of the car, improvised for the occasion, gave way, and that appellee, and others thereon sitting, were thus caused to fall in front of the car, from which they received injuries. There was also some evidence tending to show that the act of one not a servant of appellant may have caused the accident. What the real cause was, was for the determination of the jury, as was it for them to determine whether the injury resulted from the negligence of the servants of appellant. The jury may have come to the conclusion that the arrangement for seating appellee and others who were going to the inquest was not such as, under the circumstances, ordinary prudence demanded, and that this caused the accident; and, if so, we cannot say that there was not evidence to sustain such a finding. We know from the evidence that the rest for the legs or feet of those seated on the front of the car gave way, and caused those there sitting to fall before the moving car; and that it did fall is some evidence that it was not properly placed or secured, which, in the absence of some evidence that it could not have been well secured consistently with the proper use of the car, the jury was authorized to look to on the question of negligence or not. Being lawfully on the hand car, it was the duty of appellant to exercise at least ordinary care for the safety of appellee. Whitehead . St. Louis, etc., R. Co., 99 Mo. 263, 39 Am. & Eng. R. Cas. 410. The charges requested, which were intended to inform the jury as to the facts which would not have conferred on Hume authority to transport the coroner and jury on hand cars, and as to the effect of his directing this to be done, if this was in excess of his power, were but abstract propositions, more likely to mislead the jury, under the evidence, than to give them a correct view of their duties, and were properly refused; and specially so in view of the fact that the charge given by

ies.

the court fairly presented the questions in the case to the jury. An interrogatory propounded to a witness whose testimony was taken by deposition was as follows: "Please state any other fact or facts within your knowledge regarding Interrogator the matter, the same as if directly questioned about it." And, without objection made before the trial, the answer to this interrogatory was objected to on the ground that it was general, and did not tend to elicit any particular fact or facts. The objection was one that went to the manner and form of taking the deposition, and, to have been available should have been urged in proper time and manner. Such objections cannot be made for the first time during the trial. The answer, however, did not state a single fact that was not proved by most of the witnesses; i. c., that the section foreman took the coroner and jury out on the hand cars, and that appellee was hurt.

Evidence

Appellant, on notice, having filed copies of the telegrams on which the coroner and jury were taken out, the operator who received the telegrams was permitted to state the message, which in no material respect differed from the copy filed. There was no error in admitting this evidence; but, had there been, no injury could have resulted, as it related to a matter about which there was no controversy.

Telegrams flled.

The cause having been fairly submitted to the jury on evidence which cannot be said to be insufficient to sustain the verdict, the judgment must be affirmed.

Injury to Person Riding upon Hand Car.-See Prince v. International & G. N. R. Co. (Tex.), 21 Am. & Eng. R. Cas. 152; International, etc., R. Co. v. Gray (Tex.), 27 Id. 318.

PALMER

V.

PRESIDENT, ETC., DELAWARE & HUDSON CANAL CO.

(New York Court of Appeals, Second Division, April 15, 1890.)

Passengers-Defective Appliances-Negligence in Making Inspection— Question for Jury. Whether the system of inspecting the appliances of its passenger cars adopted by a railway company and the manner of its execution are all that is required of the carrier, cannot be measured by any rule of law to be applied by the court, but is a question of fact for the jury to determine upon proper instructions relating to the degree of care imposed upon the company.

Passenger Injured by Breaking of Spindle of Draw Head-Negligence in not Discovering Flaw. Under the above rule it is held that the finding of the jury that the defendant company had not used due care in examining

the draw head of a car, the spindle of which broke and resulted in the injury to the plaintiff, would not be disturbed, although it was shown that the spindle was a new one, and that in order to examine it it was necessary to pull the car apart, and that such a spindle had never been known to break before by the use made of it in running a train.

APPEAL from Supreme Court, General Term, Third Department.

Action by Frank A. Palmer against the president, managers, and company of the Delaware & Hudson Canal Company. A judgment entered on a verdict in favor of plaintiff was affirmed at general term, and defendant again appeals. Edwin Young, for appellant.

A. J. Parker, Jr., for respondent.

Case stated.

BRADLEY, J.-On September 17, 1885, while going at the rate of 20 or 25 miles per hour, the locomotive engine drawing a train upon the defendant's railroad was severed from the cars, the speed of which suddenly slacked by the operation of the air brakes, and the plaintiff,. being a passenger in one of the cars, was struck over his eye and injured by the end (said to be metallic) of the bell rope, which, being attached to the engine, was rapidly drawn through the cars. The plaintiff had the burden of proving a state of facts from which it might be inferred that his injury was occasioned by the negligence of the defendant; and, for that purpose, it was made to appear that the severance of the engine from the train was caused by the breaking of the spindle of the draw bar on the forward end of the car next to the engine. The purpose of this bar, by means of the draw head or coupling apparatus forming part of it, was to connect the cars together as a train, and the one next to the engine to it; and when it broke there was nothing to support the connection.

spindle.

There was evidence given on the trial sufficient to justify the inference of negligence of the defendant. Curtis v. Rochester & S. R. Co., 18 N. Y. 534; Edgerton v. New York & H. R. Co., 39 N. Y. 227: Seybolt v. New Necessity for York, L. E. & W. R. Co., 95 N. Y. 562, 18 Am. & Eng. examining R. Cas. 162; Breen v. New York Cent. & H. R. R. Co., 109 N. Y. 297, 34 Am. & Eng. R. Cas. 523. With a view to relief against the imputation of negligence, it was proved that the spindle, when on the car, was not accessible to observation or inspection, and the defendant gave evidence tending to prove that, for the purpose of its examination, it was necessary to put the car into the shop, and take out the draw bar, which it was not customary to do very frequently, and that the spindles and draw heads of this car were re

newed in 1883. And the reason given for not deeming it necessary to overhaul and examine this apparatus more frequently was that it was made of the best wrought iron, and that its vibration and the strain upon it, in its use, are not such as to require it; that, so far as appears by the evidence, the spindle of the draw head of a car had not been known before to break by the use made of it in running trains; and that, while the period of availability of a car for use is ordinarily 25 years, this spindle had been in the car only 2 years when it gave way. If the defendant was required to exercise ordinary care, only, in maintaining in a condition of safety its appliances used in running its trains, it would not be chargeable, upon the facts proved, with liability for the plaintiff's injury. But, while a railroad company is not an insurer of the safety of its passengers, it is bound to use a high degree of skill and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence to secure the safety of its passengers, and this vigilance is to be exercised by the company to see that its road, and appliances used in operating it, are and remain in good condition, and free from defects; and a latent defect which will relieve it from responsibllity is such, only, as no reasonable degree of human skill and foresight could guard against. Hegeman v. Western R. Co., 13 N. Y. 9; Bowen v. New York Cent. R. Co., 18 N. Y. 408; Brown v. New York Cent. R. Co. 34 N. Y. 404; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Pennsylvania Co. v. Roy, 102 U. S. 451, I Am. & Eng. R. Cas. 225. This measure of responsibility is deemed essential to the proper protection of passengers, who must necessarily rely wholly upon the precautionary care and diligence of the carrier, so far as their safety depends upon the condition of the road and the means provided for their conveyance. The evidence warranted the conclusion that the broken appliance which, in the present case, was the cause of the injury complained of, was defective, and that, if it did not become so by its use upon the car, it was so when put on it. The witnesses did not agree about its apparent condition at the time it broke; but evidence on the part of the plaintiff tended to prove that, at the point where it severed, there was a flaw in the spindle three-fourths of an inch in depth. Such a flaw would extend nearly half way through the spindle, which was a round bar of iron one inch and fiveeighths of an inch in diameter. This necessarily weakened it, and permitted the inference that such imperfect condition was the cause of its breakage. Assuming that this flaw existed, it is not unreasonable to suppose that it may have been

in the iron when it was put on the car, and that, although the car had afterwards been in use on the road for two years, the spindle may not have been subjected to the peculiar strain which severed it until the time in question. When it was made to be put upon the car, the duty was to apply the known tests to ascertain whether it was in all respects fit for the purpose it was intended to serve; and if, in consequence of the failure to do so, the defect was not discovered, and the accident occurred, the defendant was responsible. That question was considered in the Hegeman and Caldwell Cases, before cited. There was some evidence tending to prove that tests might be successfully applied to discover a flaw in a wrought iron bar; that, while this could be done when it was made, it would afterwards be more difficult to do it, satisfactorily, to disclose a flaw concealed within it, and not coming to the surface, without impairing the bar in other respects. There was evidence warranting the inference that the flaw in this one had no surface covering. It did not necessarily appear by the evidence whether this was a flaw produced in the process of manufacture of the spindle, or a fracture resulting from its use on the car.

In view of the situation, the trial court submitted to the jury the question whether the defendant had failed to perform its duty in not taking the bar out of the car,

Question for

and by proper means inspecting it, with a view jury. to ascertain whether it was or remained in suitable condition for use; and to this part of the charge the defendant's counsel excepted. It may be assumed, for the purposes of the question, that no inspection had been made of this spindle during the two years it had remained on the car, and that the removal and examination of it were not within the system of inspection adopted by the defendant. The view which a carrier of passengers may have of what is or is not essential by way of inspection of its road and appliances is not necessarily conclusive, although entitled to consideration, upon the inquiry whether the system is adequate to the demand of duty upon the vigilance of the company. The same degree of care and watchfulness are not alike requisite to all of the various portions of the machinery and appliances. The apparent necessity for frequency of examination is somewhat dependent upon the liability to impairment, and the consequences which may be apprehended as the result of defective condition. But whether the system, and the manner of its execution, are all that may be required of the carrier, cannot be measured by any rule of law to be applied by the court. It must, in view of the circumstances appearing by the evidence, be one of fact for the jury to determine