The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby.

company as fireman upon one of their locomotive engines, attached to, and drawing a passenger train over and upon the line of said road.

"2. That on said day the plaintiff, as such fireman, was in the discharge of his duty, on a passenger train, running east along and upon the track of said road; and that when said passenger train had nearly reached the station at Arcola, in said county, a freight train was standing upon the side track at said station, and it having been necessary to procure wood and water for the locomotive engine attached to said freight train, and the wood and water being near the main track, the said engine and tender attached to said freight train were run out of the west end of the side track, through the west switch, and backed down east on the main track, to said wood and water station, and having procured said wood and water, moved forward on the main track to said switch, and then backed down again on said side track, and was again coupled to said freight train; but that after said engine and tender were so backed down said side track, said switch was carelessly and negligently left open, and in such a condition as to connect the said side track with the main track west of said switch, and to throw the train upon which the plaintiff was performing his duty as fireman aforesaid, upon the side track, upon which stood the freight train, as aforesaid; that when said passenger train had come within about three-fourths of a mile of said station, the said passenger train was checked up by the application of the brakes, as was usual when approaching a station; and thereupon the employees of said company at said station at Arcola signalled said passenger train to come on, that all was right. And thereupon said train, in obedience to said signal, advanced, and when it reached the switch, was running at the rate of about twenty-five miles per hour; and in consequence of the situation, as aforesaid, of said switch, said passenger train ran upon said side track and collided with said freight train; that when said engine, attached to said passenger train, had passed said switch and entered upon said

The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby.

side track, and when the collision was inevitable, and the engineer controlling said engine had jumped from the same, then the plaintiff jumped from said engine, and was greatly injured thereby in and about his head, chest, and back, his head being severely cut, and three of his ribs being broken, and one of the bones of his foot being broken; by means of which injuries his general health was permanently impaired and he rendered incapable of performing any labor since then; that the plaintiff, in thus jumping from said engine, exercised due care and prudence, and to have remained longer upon the engine would have been more perilous than to have jumped therefrom; that the injuries so received by plaintiff took place without any fault or negligence on his part; and that the collision aforesaid took place without any fault or negligence on the part of any of the persons operating the train upon which the plaintiff was employed; that said collision took place about eleven o'clock of the night of said day.

"3. That said collision was of such force and violence as to force the tender, attached to the engine of the passenger train, through the express car immediately in the rear thereof, and then to throw said express car forward through the cab of said engine (the cab being the place on the engine where the engineer and fireman stand), breaking and displacing said cab, and jamming the end of the said car up against the head of the boiler.

"4. That one David Kiser was the conductor of said freight train at the time of said collision, and that he had been in the employment as a conductor for a year or more prior to said collision; that it was his duty as such conductor to have seen that the switch aforesaid, after the engine attached to his train had used it, by passing through it and back for the purpose of procuring wood and water, was properly adjusted, so as to keep the approaching train, upon which the plaintiff was employed, upon the main track; and that it was by his gross negligence, carelessness, and want of attention, that the switch was left thus unadjusted, thereby causing the collision aforesaid.

The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby.

"5. That at the time of the collision aforesaid, the following rule, specifying the duties of conductors with reference to switches, was in force: Conductors of trains shall attend to the shifting and replacing switches used by their engines, or trains, at stations and turnouts; and they will be held responsible for the proper adjustment of the switches, which may have been used by them or their trains.'

"6. That about a year ago, before the collision aforesaid, and while the said David Kiser was in the employment of the defendant as a conductor of a freight train on said road, he carelessly and negligently left a switch open at a station called Valparaiso, on said road, which it was his duty as such conductor to have closed, and that in consequence thereof an accommodation train passing along said road was thrown off of the main track upon the side track, and nearly collided with the train of said Kiser on the side track, but no actual collision took place.

"7. That the master of transportation on that division of the road between Fort Wayne and Chicago, embracing said Valparaiso, was on board said accommodation train, and had knowledge of said circumstance.

"8. And that said master of transportation, by virtue of his said office, had direct charge and supervision of all conductors and brakemen operating on all freight trains running between Chicago, Illinois, and Fort Wayne, Indiana; that at Valparaiso, the depot had a yard-master, whose business it was to attend to the adjustment of switches; but it was usual and customary at said station for the conductors of the trains using said switches to properly adjust them, and it was their imperative duty to see that it was done.

"9. That afterward, in the fall of 1865, but the precise time the jury are not able, from the evidence, to determine, the said Kiser, being in the employment as a conductor of a freight train, received a telegram from the superintendent of the road, while at Pierceton, a station on the line of said railroad, directing him to run to Kos

The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby.

ciusko, a station about three miles distant due west, and then wait for a train passing east; that the telegram was received in the day time, and that it was his duty to read the same and then pass it to the engineer; that he did read said telegram and did then hand the same to the engineer; that when his train approached Kosciusko, the station at which he was to stop and wait for the train passing east, the engineer whistled down brakes, but the said Kiser, as such conductor, signalled the engineer to go ahead, whereupon the train went on and passed Kosciusko about half or threequarters of a mile. After passing Kosciusko, the conductor, Kiser, went forward to the engineer, re-read the orders, and then the train was backed up to Kosciusko.

"10. That in failing to read and understand said order, he was guilty of negligence, and in signalling the engineer to go on when he had ordered down brakes, he was guilty of gross negligence; and after the collision at Arcola, the said Kiser continued in the employment of the defendant as a conductor; that the said Kiser was a careless and unfit person for the position of a conductor on the railroad; that the defendant, by the exercise of ordinary care, could have ascertained his unfitness for said position before the collision at Arcola, as aforesaid.

"II. And from the facts and circumstances, it is to be inferred that the defendant had knowledge of his unfitness for said position, and therefore, we find that the defendant had such knowledge before said collision.

"12. We further find that the defendant was guilty of negligence and want of proper care in retaining said Kiser in their employment as a conductor, up to the time of the collision, as aforesaid.

"13. We further find that from the negligence of the defendant in retaining said Kiser in their employment as such conductor, the collision aforesaid happened, whereby the plaintiff was injured as aforesaid, without any fault or negligence on the part of the plaintiff.

"14. We further find that at the time said Kiser received

The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby.

said telegraph order at Pierceton, from the superintendent, a rule was in force as follows: 'The engine man of a locomotive is under the orders of the conductor of the train, so far as relates to the starting, stopping, and speed of the train, shifting cars, etc., but the conductor has no authority to direct the engine man to leave in advance of his schedule time, nor will the engine man be excusable in obeying an order from the conductor that may endanger the safety of the train, or require a violation of this rule.'

"15. If, upon these facts, the law is with the plaintiff, then we find for the plaintiff, and assess his damages at three thousand dollars. O. LINK, Foreman. "And if the law is with the defendant, then we find for the defendant. O. LINK, Foreman."

And afterward, to wit, on the 8th day of March, 1869, the same being the 13th judicial day of the term of court last mentioned, the following further proceedings were had by said court in the above entitled cause, to wit:

"Come the parties, and said defendant moves the court for a venire de novo in these words:

"Arthur Ruby v. Pittsburgh, Fort Wayne, and Chicago Railway Company. The said defendant moves the court to set aside the verdict in this case, and grant a writ of venire de novo, upon the following grounds, viz. :

"I. That said verdict does not find facts only, but, on the contrary, the jury, on the question of defendant's negligence, instead of finding and returning the facts from which the conclusions of law, as to negligence, should be drawn by the court, find negligence as a fact, as a conclusion of mixed fact and law.

"2. For that the verdict does not purport to contain all the material facts given in evidence on the trial.

"3. For that the said verdict does not show that other facts were not proved on the trial, except those stated in the verdict and not returned in it, and is essentially a general verdict, instead of being special, in accordance with the order of the court.