« AnteriorContinuar »
that one of the Carroll county men was opinion that Gilmore did express the opinion that the sum mentioned by Chisholm would be sufficient." Respondent testified on the hearing that after he returned to Chicago he telephoned the Carroll county men that $2,100 would be required to "get the machinery," etc.
badly scared, and would "give up many thousands of dollars rather than be punished;" that the guilt of the parties was so evident that they could not be defended; that, if Mastin would advise his clients to give up the $2,100, he (Mastin) should have one third of it, and the balance would be divided between himself (respondent) and another, whom he did not name; that the payment of $2,100 would be much less punish ment than they would suffer if they were arrested and sent to the penitentiary; that, if they paid the $2,100, they would be relieved from all danger of prosecution and arrest. Mastin substantially repeated these statements in his testimony taken in this proceeding, and the respondent testified that the conversation as testified to by Mastin did not occur. The respondent admitted that he went to Carroll county, and had an interview with the conspirators in the wiretapping scheme who lived there. His counsel, in his brief in this case, says that the respondent in that interview explained to the Carroll county men that "wire tapping and conspiracy to tap wires were crimes; and told them the penalties attached by statute to each; and recited what Roach and Vaughn [two of the Chicago conspirators] had already told him about a detective for the Western Union having taken the machinery, and suggested that, if the parties in possession of the machinery and those prosecuting would cease their activity and give up the machinery on payment of their losses, the strongest evidence of guilt would be out of the possession of the prosecution;" that, "while Gilmore has no recollection of the sum of $2,000 being mentioned, the writer of this inclines to the
Robert B. F. PEIRCE, Receiver of Toledo, St. Louis, & Kansas City Railroad Company, Plff. in Err.,
Edward VAN DUSEN.
(24 C. C. A. 280, 47 U. S. App. 339, 78 Fed. 693.)
UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.
the same manner as the owner or possessor thereof would be bound to do if in possession, is subject to any rule prescribed by the state imposing on railroad corporations a liability for the negligence of employees having superior authority over other employees. 2. An action against a receiver of a railroad corporation is within the provisions of Ohio act April 2, 1890, making railroad companies liable in certain cases for the negligence of fellow servants or employees who have power or authority to dlrect or control the one injured.
A receiver of a Federal court in charge of a railroad company, who, by act Cong. March 3, 1887, chap. 373, cor rected by act August 13, 1888, chap. 866, is required to manage and operate the property according to the requirements of the valid laws of the state in which it is situated, in
NOTE. AS to liability of receiver for injuries caused by operation of railroad, see note to Turner v. Cross, 15 L. R. A. 262.
If the testimony of Mastin be true, the respondent was guilty as a party to the conspiracy to extort money from the Carroll county confederates, and of prostituting his standing and position as a member of the bar to the furtherance of that criminal purpose. If the view urged by the respondent be true, it would appear he sought to obtain, the money for the purpose of corrupting the public officers to surrender the evidence of the guilt of his clients, though it seems to be the better conclusion to be drawn from the evidence that the machinery and appliances for tapping the wires were never, in fact, in the hands of the police authorities. If the view of the respondent be accepted, there seems no escape from the conclusion that since his admission to the bar he has been guilty of professional misconduct evincing such lack of personal integrity and professional honor as to establish that he is unworthy to be longer allowed to hold a place in the ranks of an honorable profession.
The prayer of the petition will be granted, and judgment will be entered herein ordering that the name of the respondent be stricken from the roll of attorneys in this state, and also that the respondent pay the costs of this proceeding.
Rule made absolute.
Petition for rehearing denied April 5, 1905.
3. Railroad companies engaged interstate commerce are subject to a state statute making railroad companies liable for injuries to employees on account of the negligence of others having control or direction of them, so long as Congress does not deal with that subject.
ing all laws of a general nature to have a uniform operation throughout
4. A constitutional provision requir- | any employer carrying on any other kind of business; nor to an individual owning or operating a railroad. It applies only to a railroad or railway corporation. It is limited to classes of employers and employees which do not include either the plaintiff or the defendant in this case. It does not apply to a court of chancery having possession of a railroad property, and operating the same through a receiver.
the state is not violated by Ohio act April 2, 1890, relating to the liability of railroad companies for injuries to employees, since it applies to all railroad corporations operating railroads within the state, and to all of a common class of railroad employees. 5. Negligence of a superior servant of a railroad company, causing injury to an employee under his control, renders the employer liable under Ohio act April 2. 1890, although the negligence was in respect of the performance of work of the kind done by the injured person, and not in the performance of any duty imposed by law on the master personally.
A verdict for damages will not be disturbed on writ of error on the ground that they were excessive, when the trial court did not disturb it.
7. Declarations of a train conductor tending to show that his negligence caused an injury to an employee whose hand was caught between cars is admissible as part of the res geste when made as he met the injured man with his hand still bleeding, immediately after he had come from between the cars, and had walked only six or seven car lengths toward the engine.
(February 2, 1897.*)
'RROR to the Circuit Court of the United States for the Northern District of Ohio to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by negligence for which defendant was alleged to be responsible. Affirmed.
The facts are stated in the opinion. Argued before Harlan, Circuit Justice, and Taft and Lurton, Circuit Judges. Messrs. Brown & Geddes, for plaintiff in error:
Henderson v. Walker, 55 Ga. 481; Thurman v. Cherokee R. Co. 56 Ga. 376; Campbell v. Cook, 86 Tex. 630, 40 Am. St. Rep. 878, 26 S. W. 486; San Antonio & A. P. R. Co. v. Reynolds (Tex. Civ. App.) 30 S. W. 846; Central Trust Co. v. East Tennessee, V. & G. R. Co. 69 Fed. 353; Turner v. Cross, 83 Tex. 224, 15 L. R. A. 262, 18 S. W. 578; Texas & P. R. Co. v. Collins, 84 Tex. 121, 19 S. W. 365; Texas & P. R. Co. v. Cox, 145 U. S. 606, 36 L. ed. 833, 12 Sup. Ct. Rep. 905.
May a court insert in a penal statute persons not named? If it may be extended to an individual operating a railroad by virtue of his appointment as receiver by a Federal court, might not a court also enlarge the statute so as to include an individual not so appointed?
Priestman v. United States, 4 Dall. 28, 1 L. ed. 727; The Paulina v. United States, 7 Cranch, 60, 3 L. ed. 268; Denn v. Reid, 10 Pet. 524, 9 L. ed. 519; United States v. Hartwell, 6 Wall. 385, 18 L. ed. 830; Hadden v. The Collector (Hadden v. Barney) 5 Wall. 111, 18 L. ed. 518; Lake County v. Rollins, 130 U. S. 662, 32 L. ed. 1060, 9 Sup. Ct. Rep. 651; United States v. Fisher, 2 Cranch, 358, 2 L. ed. 304; Doggett v. Florida R. Co. 99 U. S. 72, 25 L. ed. 301; People ex rel. Jackson v. Potter, 47 N. Y. The negligence complained of was the neg- 375; Hills v. Chicago, 60 111. 86; Newell v. ligence of a fellow servant.
The mere exercise of authority by one servant over another does not create the relation of vice principal.
Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Northern P. R. Co. v. Hambly, 154 U. S. 360, 38 L. ed. 1013, 14 Sup. C. Rep. 983; Harley v. Louisville & N. R. Co. 57 Fed. 144; Central R. Co. v. Keegan, 160 U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269; Texas & P. R. Co. v. Rogers, 6 C. C. A. 403, 13 U. S. App. 547, 57 Fed. 378; McGrath v. Texas & P. R. Co. 9 C. C. A. 133, 23 U. S. App. 86, 60 Fed. 555; Bailey, Master's Liability for injuries to servant, 239 et seq.
The Ohio statute as to fellow servants is confined to corporations owning or operating a railroad in Ohio. It does not apply to This case was taken to the Supreme Court of the United States, but settled before it was heard there.
People, 7 N. Y. 97; King v. Poor Law
Where the right to recover damages occasioned by death is conferred by statute against certain persons only, the right can be asserted and enforced against such persons, and no others.
Chicago & N. E. R. Co. v. Sturgis, 44 Mich. 538, 7 N. W. 213; Shaw v. Clark, 49 Mich. 384, 43 Am. Rep. 474, 13 N. W. 786; Dent v. Ross, 52 Miss. 188; Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815; Detroit v. Chaffee, 70 Mich. 80, 37 N. W. 882; Scott v. Simons, 70 Ala. 352; Lair v. Killmer, 25 N. J. L. 522; Swift v. Luce, 27 Me. 285; Emerson v. Com. 108 Pa. 111; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152; Sedgw. Stat. & Const. Law, 194, 195, 263, 265; Turner v. Cross, 83 Tex. 218, 15 L. R. A. 262, 18 S. W. 578.
When the property of a railroad company | in respect of the performance of work which is in the hands of a receiver, who has full pertained to him as a fellow servant. possession and entire charge of its affairs, the corporation itself is not liable for damage or injury caused by the acts of negligence of such a receiver, or of any of his agents or employees.
Central R. Co. v. Keegan, 160 U. S. 267, 40 L. ed. 422, 16 Sup. Ct. Rep. 269; Taylor v. Evansville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; Justice v. Pennsylvania Co. 130 Ind. 321, 30 N. E. 303; Crispin v. Babbitt,
Washington A. & G. R. Co. v. Brown, 17 Wall. 445, 21 L. ed. 675; Davis v. Dun-81 N. Y. 516, 37 Am. Rep. 521; Hussey v. can, 19 Fed. 477; 20 Am. & Eng. Enc. Law, p. 387.
The Federal statute does not enlarge the state statute. If the latter does not by its terms apply to a receiver, the Federal statute will not so apply it.
Coger, 112 N. Y. 614, 3 L. R. A. 559, 8 Am. St. Rep. 787, 20 N. E. 556; Holden v. Fitchburg R. Co. 129 Mass. 268, 37 Am. Rep. 343; Wilson v. Merry, L. R. 1 H. L. Sc. App. Cas. 326; Stockmeyer v. Reed, 55 Fed. 259; Baltimore & O. R. Co. v. Baugh, 149 U. S. 385, 37 L. ed. 780, 13 Sup. Ct. Rep. 914; Northern P. R. Co. v. Hambly, 154 U. S. 349, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983; Northern P. R. Co. v. Peterson, 162 U. S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843.
Where state statutes impose a liability upon a railway company as owner, which does not exist as against a receiver of the railway, the Federal courts will not place the receiver upon the same plane of liability as the owner.
Central Trust Co. v. East Tennessee, V. & G. R. Co. 69 Fed. 353; Baltimore Trust & G. Co. v. Atlanta Traction Co. 69 Fed. 358; Allen v. Dillingham, 8 C. C. A. 544, 23 U. S. App. 167, 60 Fed. 176.
Plaintiff was permitted to testify that, in a conversation after the accident, and after the plaintiff had got his hand cut, and had walked six or seven car lengths, Mr. Bartley, the conductor, said to him that which, plaintiff claims, amounted to admission of negligence on his part. That testimony was wholly incompetent.
A state legislature cannot impose liabilities upon a court of chancery of the United States charged with the administration Northwestern Union Packet Co. v. Clough, of property or funds in the custody of the 20 Wall. 528, 22 L. ed. 406; Vicksburg court, in a matter governed by general law. & M. R. Co. v. O'Brien, 119 U. S. 99, 30 A suit against a receiver is a suit L. ed. 299, 7 Sup. Ct. Rep. 118; Luby v. against the receivership. Hudson River R. Co. 17 N. Y. 131; Adams McNulta v. Lochridge, 141 U. S. 327, 35 v. Hannibal & St. J. R. Co. 74 Mo. 553, 41 L. ed. 796, 12 Sup. Ct. Rep. 11. Am. Rep. 333; Williamson v. Cambridge R. Co. 144 Mass. 148, 10 N. E. 790; Richstain v. Washington Mills Co. 157 Mass. 538, 32 N. E. 908; Cleveland, C. & C. R. Co. v. Mara, 26 Ohio St. 185.
The question whether certain persons are fellow servants of an employer so as to preclude one from recovering against the employer for injuries caused by the negligence of the other is not a question of local law, but is one of general law, as to which the Federal court will exercise an independent judgment.
Baltimore & O. R. Co. v. Baugh, 149 U. S. 308, 37 L. ed. 772, 13 Sup. Ct. Rep. 914.
The act of April 2, 1890 (87 Ohio Laws, 149), is in conflict with § 26 of art. 2 of the Constitution of Ohio, providing that all laws of a general nature shall have a uniform operation throughout the state.
Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000; Kelley v. State, 6 Ohio St. 269: Cooley, Const. Lim. 6th ed. 481; Shaver v. Pennsylvania Co. 71 Fed. 931; State v. Julow, 129 Mo. 163, 29 L. R. A. 257, 50 Am. St. Rep. 443, 31 S. W. 781.
Even if Van Dusen were injured by the negligence of Bartley in the manner charged, still he is not entitled to recover, for the reason that Bartley was not negligent in the performance of any duty which the law imposed on the master personally, but only
Messrs. Hurd, Brumback, & Thatcher, for defendant in error:
Because a superior participates in the work with his subordinates, this in no wise detracts from his authority and control over his subordinates.
Berea Stone Co. v. Kraft, 31 Ohio St. 287, 27 Am. Rep. 510.
It is not necessary that a superior officer should have authority to discharge a subordinate in order to constitute him such superior.
Moore v. Wabash, St. L. & P. R. Co. 85 Mo. 588; Hoke v. St. Louis, K. & N. R. Co. 88 Mo. 360; Dowling v. Gerard B. Allen & Co. 74 Mo. 13; Shearm. & Redf. Neg. §§ 226, 227.
The 3d section of the judiciary act of March 3, 1887 (24 Stat. at L. 554, chap. 373, U. S. Comp. Stat. 1901, p. 582), authorizing suits to be brought against receivers of railroads without special leave of the court by which they were appointed. was intended to place receivers upon
the same plane with railroad companies, both as respects their liability to be sued for acts done while operating a railroad, and as respects the mode of service.
Missouri P. R. Co. v. Mackey, 33 Kan. 298, 6 Pac. 291, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161.
Eddy v. Lafayette, 163 U. S. 456, 41 L. ed. 225, 16 Sup. Ct. Rep. 1082; Hornsby v. Eddy, 5 C. C. A. 560, 12 U. S. App. 404, 56 Fed. 461; Eddy v. Lafayette, 1 C. C. A. 441, 4 U. S. App. 247, 49 Fed. 807; Rouse v. Hornsby, 14 C. C. A. 377, 32 U. S. App. 111, 67 Fed. 219; Rouse v. Harry, 55 Kan. 589, 40 Pac. 1007; Central Trust Co. v. Wabash, St. L. & P. R. Co. 26 Fed. 12; Murphy v. Holbrook, 20 Ohio St. 137, 5 Am. Rep. 633; Campbell v. Cook (Tex. Civ. App.) 24 S. W. 977.
The legislature is well justified in segregating railroad employees into a separate class for legislation, for the reason that they are subject to hazards and dangers peculiarly incident to their employment (which is of a public nature); and, by reason thereof, in the interest of their welfare and safety, is is the duty of the legislature to pass proper laws for their protection.
The Ohio statute is applicable to the case at bar because of the provisions of § 2 of the act of Congress of August 13, 1888, 1 U. S. Rev. Stat. Supp. 613, U. S. Comp. Stat. 1901, p. 582.
The act of April 2, 1890 (87 Ohio Laws, 149), is not unconstitutional because of being a law of a general nature without a uniform operation.
Shaver v. Pennsylvania Co. 71 Fed. 931; Johnson v. Philadelphia & R. R. Co. 163 Pa. 127, 29 Atl. 854; Donald v. Chicago, B. & Q. R. Co. 93 Iowa, 284, 33 L. R. A. 492. 61 N. W. 97'; Fuller v. Baltimore & O. Employes' Relief Asso. 67 Md. 433, 10 Atl.
Hoben v. Burlington & M. River R. Co. 20 Iowa, 562; Deppe v. Chicago, R. I. & P. R. Co. 36 Iowa, 52; Frandsen v. Chicago, R. I. & P. R. Co. 36 Iowa, 372; Schroeder v. Chicago, R. I. & P. R. Co. 41 Iowa, 344; McKnight v. Iowa & M. R. Constr. Co. 43 Iowa, 406; Lombard v. Chicago, R. I. & P. R. Co. 47 Iowa, 494; Moore v. Central R. Co. 47 Iowa, 688; Smith v. Humeston & S. R. Co. 78 Iowa, 583, 43 N. W. 545; Missouri P. R. Co. v. Haley, 25 Kan. 35; Union P. R. Co. v. Harris, 33 Kan. 416, 6 Pac. 571; Union Trust Co. v. Thomason, 25 Kan. 1; Austin Rapid Transit R. Co. v. Groethe (Tex. Civ. App.) 31 S. W. 197; Lavallee v. St. Paul, M. & M. R. Co. 40 Minn. 249, 41 N. W. 974; Johnson v. St. Paul & D. R. Co. 43 Minn. 222, 8 L. R. A. 419, 45 N. W. 156; Smith v. St. Paul & D. R. Co. 44 Minn. 17, 46 N. W. 149; Steffenson v. Chicago, M. & St. P. R. Co. 45 Minn. 355, 11 L. R. A. 271, 47 N. W. 1068.
Where a statute does not relate to persons or things as a class, but to particular persons or things of a class, it is special. as contradistinguished from general, law.
State ex rel. Lionberger v. Tolle, 71 Mo. 645; State ex rel. Harris v. Herrmann, 75 Mo. 340.
Very few statutes apply equally to every person in the state.
Adler v. Whitbeck, 44 Ohio St. 539, 9 N. E. 672; Senior v. Ratterman, 44 Ohio St. 661, 11 N. E. 321; State v. Portsmouth & C. Turnp. R. Co. 37 Ohio St. 481; Re New York Elev. R. Co. 70 N. Y. 327; Sandford v. Poe, 60 L. R. A. 641, 16 C. C. A. 305. 37 U. S. App. 378, 69 Fed. 546; Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 407, 23 L. R. A. 264, 41 Am. St. Rep. 109, 25 S. W. 75; Union P. R. Co. v. Porter, 38 Neb. 226, 56 N. W. 808; Gulf, C. & S. F. R. Co. v. McCown (Tex. Civ. App.) 25 S. W. 435: Jacksonville, T. & K. W. R. Co. v. Prior, 34 Fla. 271, 15 So. 760; Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110.
The hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public.
The admissibility in evidence of any declarations or statements made and relating to any act or accident occurring, or to any injury done, is determined by the character of the declarations made, and by certain limitations of time.
Any fact or circumstance growing out of and substantially concurrent with the accident and injury, tending to show negligence, and to fix the liability on the party responsible therefor; and every subsequent fact and circumstance showing and establishing the extent of the injury,—are admissible.
Hermes v. Chicago & N. W. R. Co. 80 Wis. 590, 27 Am. St. Rep. 69, 50 N. W. 584; Hanover R. Co. v. Coyle, 55 Pa. 396.
Any declarations of the injured party, or of the master or his employee, made at the time and place, as to the circumstances and causes incident and contributing to the accident and wrong done, are admissible.
Travellers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437; Hermes v. Chicago & N. W. R. Co. 80 Wis. 590, 27 Am. St. Rep. 69, 50 N. W. 584; Keyser v. Chicago & G. T. R. Co. 66 Mich. 390, 33 N. W. 867; O'Connor v. Chicago, M. & St. P. R. Co. 27 Minn. 166, 38 Am. Rep. 288, 6 N. W. 481;
Five thousand five hundred dollars is not excessive for loss of a hand.
Ward v. White, 86 Va. 212, 19 Am. St. Rep. | 501; Entwhistle v. Feighner, 60 Mo. 215; 883, 9 S. E. 1021; Northern P. R. Co. v. McLeod v. Ginther, 80 Ky. 399; Cleveland, Urlin, 158 U. S. 271, 39 L. ed. 977, 15 Sup. C. & C. R. Co. v. Mara, 26 Ohio St. 185; Ct. Rep. 840; North American Acci. Asso. Union Cent. L. Ins. Co. v. Cheever, 36 Ohio v. Woodson, 12 C. C. A. 392, 24 U. S. App. St. 201, 38 Am. Rep. 573. 364, 64 Fed. 691; State v. Mathews, 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135; Lewis v. State, 29 Tex. App. 201, 25 Am. St. Rep. 720, 15 S. W. 642; State v. Molisse, 38 La. Ann. 381, 58 Am. Rep. 181; Anderson v. New York & T. S. S. Co. 47 Fed. 38; International & G. N. R. Co. v. Anderson, 82 Tex. 516, 27 Am. St. Rep. 902, 17 S. W. 1039. Such declarations may be separated from the causal act by a short lapse of time when there are connecting circumstances. Travellers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437; Harriman v. Stowe, 57 Mo. 93.
There is no absolute, ironclad, or invariable rule of limitation of time when such declarations are, or are not, admissible.
Rawson v. Haigh, 2 Bing. 99; Ward v. White, 86 Va. 212, 19 Am. St. Rep. 883, 9 S. E. 1021; Wharton, Neg. § 258; North American Acci. Asso. v. Woodson, 12 C. C. A. 392, 24 U. S. App. 364, 64 Fed. 691; Hill v. Com. 2 Gratt. 605; Quincy Horse R. & Carrying Co. v. Gnuse, 137 Ill. 264, 27 N. E. 190; Hanover R. Co. v. Coyle, 55 Pa. 402; Koetter v. Manhattan Elev. R. Co. 36 N. Y. S. R. 611, 13 N. Y. Supp. 458, Affirmed in 129 N. Y. 668, 30 N. E. 65; Hooker v. Chicago, M. & St. P. R. Co. 76 Wis. 542, 44 N. W. 1085; Brownell v. Pacific R. Co. 47 Mo. 239; Keyser v. Chicago & G. T. R. Co. 66 Mich. 390, 33 N. W. 867; Omaha & R. Valley R. Co. v. Chollette, 41 Neb. 578. 59 N. W. 921; Elledge v. National City & 0. R. Co. 100 Cal. 282, 38 Am. St. Rep. 290, 34 Pac. 720; Linderberg v. Crescent Min. Co. 9 Utah, 163, 33 Pac. 692; Wabash Western R. Co. v. Brow, 13 C. C. A. 222, 31 U. S. App. 192, 65 Fed. 941; State v. Molisse, 38 La. Ann. 381, 58 Am. Rep. 181; East St. Louis Connecting R. Co. v. Allen, 54 Ill. App. 27; Louisville & N. R. Co. v. Foley, 94 Ky. 220, 21 S. W. 866; Shafer v. Lacock, 168 Pa. 497, 29 L. R. A. 254, 32 Atl. 44; McLeod v. Ginther, 80 Ky. 399; Baltimore & O. R. Co. v. State, 81 Md. 371, 32 Atl. 201; Louisville, N. A. & C. R. Co. v. Buck, 116 Ind. 566, 2 L. R. A. 520, 9 Am. St. Rep. 883, 19 N. E. 453; Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Rep. 838; People v. Simpson, 48 Mich. 474, 12 N. W. 662; Keyser v. Chicago & G. T. R. Co. 66 Mich. 390, 33 N. W. 867; Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333, 3 Am. St. Rep. 230, 3 S. W. 50; Kirby v. Com. 77 Va. 681, 46 Am. Rep. 747; Durkee v. Central P. R. Co. 69 Cal. 533, 58 Am. Rep. 562, 11 Pac. 130; Elkins v. McKean, 79 Pa.
Murtaugh v. New York C. & H. R. R. Co. 49 Hun, 456, 3 N. Y. Supp. 483; Chicago & A. R. Co. v. Wilson, 63 Ill. 167; Western & A. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. 912; Silberstein v. Houston, W. Street & P. Ferry R. Co. 4 N. Y. Supp. 843; Dougherty v. Missouri R. Co. 97 Mo. 647, 8 S. W. 900, 11 S. W. 251; Newport News & M. Valley R. Co. v. Campbell, 15 Ky. L. Rep. 714, 25 S. W. 267.
Harlan, Circuit Justice, delivered the opinion of the court:
This action was brought by Edward Van Dusen against R. B. F. Peirce, as the receiver of the Toledo, St. Louis, & Kansas City Railroad Company, a corporation organized under the laws of the state of Ohio.
The order appointing Peirce as receiver was made by the court below in the suit of Continental Trust Co. v. Toledo, St. L. & K. C. R. Co. 72 Fed. 92. It directed the receiver to operate the railroad, and do all things necessary to carry on the business of the company. He was so engaged on the 26th day of February, 1895, when Edward Van Dusen, the plaintiff, a yard brakeman, in the employ of the receiver, was so seriously and permanently injured while in the discharge of his duties-being himself without fault-that he lost entirely the use of his right hand. These injuries, it is alleged, were caused solely through the carelessness and negligence of one Hugh Bartley, a conductor employed by the receiver, and under whose control and direction the plaintiff was placed at the time of his being injured.
The defendant denied the allegations imputing negligence to him, and denied that the plaintiff was without fault.
A verdict was returned in favor of the plaintiff for $5,500 in damages. A motion for a new trial having been made and overruled, judgment was entered upon the verdict.
The principal question before us is whether the statute of Ohio passed April 2, 1890 (87 Ohio Laws p. 149), entitled "An Act for the Protection and Relief of Railroad Employees; Forbidding Certain Rules, Regulations, Contracts, and Agreements, and Declaring Them Unlawful; Declaring It Unlawful to Use Cars or Locomotives Which Are Defective, or Defective Machinery or Attachments thereto Belonging; and Declaring Such Corporation Liable, in Certain