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teller of the bank, but no negligence on the part of tho bank was established, and a verdict for the defendant on that ground was sustained. The receipt of the bonds was not claimed to be ultra vires.

In First National Bank of Carlisle v. Graham, 79 Penn. St. 106; S. C., 21 Am. Rep. 49; Thomp. N. B. Cas. 875, the iplaintiff sued for the loss of U. S. bonds claimed to have been deposited by her with the bank, and relied upon a receipt for the bonds signed by the cashier of the bank, in which he acknowledged that she had left the bonds in the bank for safe-keeping. It was admitted that government bonds were received by the bank for safe-keeping with tho knowledge of the president, cashier and teller, and without compensation. A verdict and judgment having been rendered for the plaintiff, it was reversed on exceptions to rulings on questions of evidence or to some portions of the charge in submitting to the jury the question of negligence, but on the point of the liability of the bank the doctrine of Foster y. Essex Bank was emphatically reiterated, and it is stated that the rule as laid down in that case has been uniformly applied iu the Supreme Court of Pennsylvania in cases involving the rights and duties of National banks.

In Turner v. First National Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454, the liability of a National bank for a special deposit of bonds was also recognized. Smith v. First National Bank of Westfield, 99 Mass. 605, was also a case of a special deposit of bonds with a National bank, and the bank was held to be bailee of the bonds liable only for want of ordinary

care.

To the same effect is Giblin v. McMullen, L. R., 2 P. C. 317.

In Chattahoochie National Bank v. Schley, 38 Ga. 369; Thomp. N. B. Cas. 379, the court after referring to some of the cases which have been cited, and also to the recent cases of First National Bank v. Ocean National Bank, 60 N. Y. 278; S. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728; Wiley v. First National Bank of Brattleboro, 47 Vt. 546; S. C., 19 Am, Rep. 122; Thomp. N. B. Cas. 905, summarizes its view of the existing law as follows: “By habitually receiving through its cashier special deposits to be kept gratuitously for mere accommodation, a National bank will incur liability for gross negligence in respect to any such deposits received in the usual way." This I adopt as a concise and accurate statement of the result of the decisions to which I have referred.

The only adjudications to be found in conflict with this doctrine are the cases of Wiley v. First Nat. Bank, 47 Vt. 546; S.C., 19 Am. Rep. 132; Thomp. N. B. Cas. 905, followed by the same court in 50 Vt. 389, Browne's N. B. Cas. 69, note, where it was held, in direct opposition to all the cases I have cited, that when a special deposit is received by a National bank, even in accordance with usage, and with the knowledge and acquiescence of the directors of the bank, the bank is not liable for its loss even by gross negligence; and this is put upon the ground that the bank has no corporate capacity to receive such deposits for safe-keeping, and consequently cannot empower any of its officers to incur liability in its behalf by so doing.

There are some cases in which the Vermont cases are referred to with approval by the judge writing the opinion (Third National Bank of Baltimore v. Boyd, 41 Md. 47; 8. C., 22 Am. Rep. 35; Thomp. N. B. Cas. 45; First National Bank v. Ocean National Bank, 60 N. Y. 278; 3. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728), but there is no other adjudication to the same effect. In the case in 60 N, Y. the opinion expressly states that it is unnecessary to consider the question of the power of the bank; that it is a question not free from difficulty, but can be more satisfactorily considered when it becomes necessary to a judgment. The opinion proceeds upon the ground

that the receiving of special deposits was not shown to be part of the ordinary business of the bank; that there was an entire absence of evidence that it was the habit or practice of the defendant to receive such deposits; that no authority to the cashier or assistant cashier to receive special deposits had been shown, and whatever might be the incidental powers of the corporation, the power of its officers to bind it can be presumed only to exist within the scope of its ordinary business and their ordinary duties.

It is upon this distinction between the facts in the case before the court, and those in Foster v. Essex Bank, that the opinion proceeds and not upon a rejection of the doctrine of that case. The opinion even in so far as it rests upon that distinction was not concurred in by the majority of the court, there being an exception upon another point which was sufficient ground for reversal of the judgment, and the majority concurred only in the result. What is said by the learned judges in respect to the Vermont case is merely incidental, and forms no part of the reasoning of the opinion and was not considered or passed upon by the court.

Appended to a report of the case in 47 Vermont, contained in 14 Am. Law Register (N. S.), 348, is a note by an eminent jurist, approving the decision, and criticising the proposition that any practice or usage of a bank in receiving special deposits can supply the want of corporate power, and respecting the same arguments which were urged by counsel in the case of Foster v. Essex Bank, 17 Mass. This want of corporate power is alleged on the ground that the power to receive deposits does not embrace receiving special deposits of valuables for safe-keeping, and that the receipt of deposits of that character is wholly outside of and foreign to the business of banking, and cannot be regarded as incidental to that business.

For the purpose of determining whether such is the case the counsel for the respondent have referred to the history of banking from its earliest period, and to the definitions by lexicographers of the banking business. This would seem to be a proper way of ascertaining what is legitimately within the scope of the business of banking and wbat are the powers of corporations formed for the purpose of carrying on that business. When the attributes of a particular calling come in question they can only be ascertained by showing what has been the general usage and practice of persons engaged in that calling, and what business has been generally transacted by them and understood to appertain to such calling. Thus only can it be ascertained what transactions are within or without the scope of such calling. A reference to tbe history of banking discloses that the chief, and in some cases the only, deposits received by the early banks were special deposits of money, bullion, plate, etc., for safe-keeping, to be specifically returned to the depositor. That such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and that the same business was dono by the goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done. The definition of the business of banks of deposit in the Encyclopedias embraces the receiving of the money or valuables of others to keep until called for by the depositors; Encyclopedia Americana, fol. 1; id. 543; English Encyclopedia of Arts and Science, fol. 1, 833, 837, 841, and although in modern times the business of receiving general deposits has constituted the principal business of the banks, it cannot be said that the receiving of special deposits is so foreign to the banking business that corporations authorized to carry on that business are incapable of binding themselves by the receipt of such deposits. The numerous cases in the books relating to special deposits in banks disclose how extensively even in

modern times this business has been and is carried on, to National bauks different from that enumerated in and the general understanding in respect to it. The that case. very act of Congress under which the National banks On the question of corporate power, we are thereare organized recognizes the practice, and provides for fore of opinion that National banks have power to rethe return of special deposits by National banks, even ceive special deposits gratuitously or otherwise, and when required to suspend their general business. Soo- that when received gratuitously they are liable for tion 46 of the act of 1864 provides that in certain their loss by gross negligence. events the banks shall cease to prosecute business, The next question in the case is as to the authority "except to receive and safely keep money belonging of the teller to act for the bank in receiving the deto them, and to deliver special deposits." This provis-posit in question. The evidence bearing on this point ion assumes that such banks will receive special de- was that the bank had been accustomed to receive posits, and impliedly recognizes and sanctions their so packages supposed to contain securities from various doing by making express provision enabling them to persons for safe-keeping; that Orrin Ballard was cashreturn them at a time when they are prohibited from ier of the bank, and his son Leon Ballard was teller, paying out to depositors funds held on general deposit. but sometimes acted as cashier in the absence of his

The Vermont case referring to this provision says father; that Orrin Ballard had the management and that it was not intended to extend the powers of the control of the affairs of the bank. It did not appear bank. Perhaps not; it rather indicates that the framer that the president or directors took any part in its of the Bank Act assumed that banks have power to management or that the directors held any meetings. receive special deposits without any express authoriza- That some of the persons who left valuables in the tion, and that it was an incident of the banking business, bank for safe-keeping were directors. That at some and would as such be exercised by the banks. It is time before the deposit in question a trust company further suggested that the term "special deposits" re- was formed in Syracuse for the receipt of valuables for fers to securities held by the banks as collateral to safe-keeping, and that after the formation of this comloans. This interpretation is wholly inadmissible; pany Mr. Ballard, the cashier, said to his son that they such securities are in no sense deposits. The term had better not take any more packages for safe-keep“special deposits” has and always has had a well-known ing, but the son says that this was not a positive inand defined meaning. In Marine Bank v. Fulton struction, but ouly an expression of opinion, and he Bank, 2 Wall. 252, 256, Miller, J., says: * All deposits afterward received packages. The son also testified made with bankers may be divided into two classes, that he told the plaintiff that his package would be at namely, those in which the bank becomes bailee of the his own risk. This was contradicted by the plaintiff. depositor, the title to the thing deposited remaining The teller also testified that his father sometimes told with the latter; and that other kind of deposit of persons depositing packages there that they would be money, peculiar to banking business, in which the de- at their own risk, but that on other occasions packages positor for his own convenience parts with title to his were received without such notice. The package of money and loans it to the banker.” This description the plaintiff was left by him with the teller at the marks the distinction between the general and special bank and remained there some two years before it was deposits. Iu Story on Bailments, $ 88, the same dis- lost, being occasionally taken out by the plaintiff to tinction is recognized and also in Rawson v. Real cut off coupons, etc., and returned by him to the bank. Estate Bank, 5 Pike (Ark.), 297. In thu Vermont case The court submitted to the jury the question whether itself at page 554, the court defines general deposits the teller had been authorized to receive such deposits, and says that at the time of the passage of the act, de- whether he did so in his individual capacity or in beposits in banks had a well-known and understood half of the bank, and whether he told the plaintiff meaning and that the delivery of money securities or that the package would be at his own risk, and whether other property to be specially kept and redelivered the teller had been directed to discontinue receiving had been equally well-kuown as special deposits, aud deposits of securities, and instructed the jury that if in Turner y. First National Bank of Keokuk, 26 Iowa, the deposit was with the teller as an individual the 562; Thomp. N. B. Cas. 454, the authority to return plaintiff could not recover. We think the evidence special deposits contained in section 46 is held to refer was sufficient to justify the submission to the jury of to deposits of securities for safe-keeping.

the questions of the authority of the teller, and That it was understood at the time of the passage of whether the deposit was with the bank in this mauthe National Banking Act that the banks organized ner, and that their verdict establishes such authority, under it were authorized to receive special deposits is and that the deposit was with the bank and not with further evidenced by a contemporaneous circular ad- tho teller in his individual capacity. The entire mandressed to the banks by the eminent Comptroller of agement and control of the affairs of the bank having the Currency, H. McCullough in 1864, in these words: been left with the cashier, his acts and the authority “In order to encourage economy and the habit of sav- conferred by him upon the teller must be deemed ing among the poor of the country and more especially binding on the corporation. of the large cities, it is suggested that the National The verdict thus establishing that the plaintiff's sebanks act as custodians without charge of United curities were received on deposit by the bank, it was States bonds and other representatives of value which bound either to return them or show some sufficient that class of persons desire to leave with them for ground for not doing so. It claims that they were safe-keeping. Bank officers that approve of this sug- stolen from the safe by some person other than the gestion will please give such notice of their willingness employees of the bank, and the remaining question in 80 to act, as is necessary for the information of tbz the case is whether the theft was suffered through parties who are to be benefited." The Banking Act gross negligence of the bank in the care of the bonds. was passed and this circular was issued in the light of This question was submitted to the jury, and we think the decision in the case of Foster v. Essex Bank, the evidence was sufficient to authorize such submiswhich declared the extent of liability incurred by sion. There was no burglary, and no direct explauabanks in respect to such deposits, a case often cited tion of the circumstance of the loss of the bonds, but and well known, especially among those concerned in there is evidence in the case tending to show that it the business of banking. It cannot be doubted that it stolen, the theft was committed in the day time while was well known to the framers of the act and the the bank was open. That the bonds were in a safe so banking department, and there is nothing in the act or situated as to be accessible to a person entering from in the contemporaneous history to indicate that it was the street; that the persons in the bank were so placed the policy or intention to establish any rule in respect that at times the safe was not iu their view, and that

IN

sometimes the door of the safe was left open. The regard such evidence. The presumption should be, so jury could from the evidence have found that the theft far as this court is concerned, that the jury based their was committed by some person entering from the verdict upon legal evidence only. street and finding the safe open, who abstracted the error to the Circuit Court of the United States for plaintiff's package without being observed by any one the Northern District of Illinois. The opinion in the room, and that leaving the property thus ex- states the case. posed was gross, negligence. There was some conflict and confusion in the evidence on these points, but

HARLAN, J. This is a writ of error from a judythese were matters exclusively within the province of

ment for the sum of $10,000, the amount assessed as the jury.

damages sustained by the defendant in error, in conseThe fact that property of the bank was stolen at quence of personal injuries received while riding, as a the same time from the same place is not conclusive passenger, in a sleeping-car which belonged to the Pullagainst the allegation of gross negligence. Dorman v.

man Palace Car Company, but constituting, at the time Jenkins, 2 Ad. & Ell. 256; Griffith v. Zipperwick, 28

the injuries were received, a part of a train of cars Ohio St, 388; Tracy v. Wood, 3 Mason, 132; Wilson v. managed and controlled by the Pennsylvania Company, McIntosh, 1 Stark. N. P. 237.

as lessee and operator of the Pittsburg, Fort Wayne These were all cases of gratuitous bailments and the

and Chicago railway. The action was commenced in question of gross negligence was left to the jury, not- the Supreme Court of Cook county, Illinois, against withstanding that the bailee took the same care of the

the Pennsylvania Company, the Pittsburg, Fort Wayne property as he did of his own which was stolen at the and Chicago Railroad Company, and the Pullman same time,

Palace Car Company. It was subsequently dismissed It has been argued on the part of the respondent by the plaintiff against all tho defendants except tho that even assuming the receipt of special deposits to

Pennsylvania Company, and then removed for trial have been beyond the legal power conferred upon the

into the Circuit Court of tho United States for the bauk by the law under which it was incorporated, yet

Northern District of Illinois, where the judgment that it having in fact received the plaintiff's property complained of was rendered. into its custody, it cannot set up its own want of corpo

The facts set forth in tho bill of exceptions, so far as rate power as a defense to an action for not returning

it is material to detail them, are these: it, or for losing it by gross negligence. The conclusion

On the 5th of June, 1876, Roy, the defendant in which we have reached on the question of power ren- error, purchased at the offico of the lessee company, in ders it unnecessary to pass upon this point.

the city of Chicago, a “first-class railroad ticket" After a careful examination of the whole case we

from that city to Philadelphia, over the lino of that think the judgment should be affirmed.

company, paying therefor the sum of $14.40. At tho All concur.

same timo and place, and of the same person, he purchased a sleeping-car ticket, issued by tho Pullman

Palace Car Company, for the route between the same CARRIER OF PASSENGERS LIABILITY OF cities, and for that ticket he paid the additional som RAILROAD COMPANY FOR INJURY TO of $5. He took the train the same day, going immePASSENGER IN PULLMAN CAR.

diately into tho section of tho sleeping-car correspond

ing to his ticket. SUPREME COURT OF THE UNITED STATES,

The next morning at Alliance, Ohio, upon tho inviNOVEMBER 22, 1880.

tation of a friend, travelling upon the samo train, he

entered tho sleeping-car in which that friend was PENNSYLVANIA COMPANY, Plaintiff in Error, v. Roy.

riding, and there engaged with him in conversation.

While so engaged tho upper berth of the section, in A carrier of passengers, for hire, is bound to observe tho which they wero sitting, fell. Thereupon the porter of

utmost caution characteristic of very careful, prudent the sleeping-car came at onco and put up the berth, men. He is responsible for injuries received by passen

saying it would not fall again. Shortly thereafter the gers, in the course of their transportation, which might have been avoided or guarded against by tho exercise,

berth fell a second time, striking the plaintiff upon the upon his part, of extraordinary vigilance, aided by the

head, injuring his brain, incapacitating him from the highest skill. Such caution and diligence extends to all

performanco of his usual avocations, and necessitating the appliances and means used by the carrier in the medical treatment. transportation of the passenger. He must provide cars After tho second falling of the berth, the brace or or vehicles adequate, that is, sufficiently secure as to arm supporting it was found to be broken. strength and other requisites, for tho safe conveyance The evidence introduced by the plaintiff tended also of passengers; and for the slighest negligence or fault,

to show that tho Pennsylvania Company provided cars in that regard, from which injury results to tho passenger, the carrier is liable in damages. A passenger pur

in which passengers, having railroad tickets, could ride chased from a railroad company a ticket over its line,

without purchasing a sleeping-car ticket; that Roy had and at the same time, from the Pullman Palace Car

much experience in travelling, and would have gone Company, a ticket entitling him to a berth in ono of its into one of those cars had ho not purchased a sleepingsleeping-cars, constituting a part of the train of tho car ticket; that at tho time he purchased the sleepingrailroad company. In the course of transportation he car ticket he did not know what company ran the was injured by the falling of a berth in the sleeping-car sleepers, but upon taking tho train he ascertained it in which he was at the time riding. Hell, that for the

was a Pullman car; that tho Pullman Palace Car Compurposes of the contract with the railroad company for trausportation, and in view of its obligation to uso only

pany was engaged in furnishing cars to be run in the cars that were adequate for safe conveyance, the sleep

trains of railroad companies; that besides the general ing-car company, its conductor and porter, were in law

conductor of tho train, there was a conductor, in unithe servanis and employees of the railroad coin pany. form, and a porter, whose duty it was to make up tho Their negligence, or the negligence of either of them, berths and attend to tho wants of passengers occupyas to any matters involving the safety or security of ing the sleeping-car. passengers, was the negligence of the railroad company.

Upon tho trial the plaintiff introduced a time and In such case, the passenger injured being entitled only

distance card of tho defendant corporation, issued, to compensatory damages, evidence as to his poverty, or as to the number and ages of his children, is irrelevant.

published, aud circulated by that company during the An exception to the admission of irrelevant testimony

year 1876, prior to the date of his injuries. That card, is cancelled when the court, before the final submission referring to the "Fort Wayne and Pennsylvania R. of the case to the jury, distinctly instructs thom to dis- R. line,” stated that three express trains left Chicago

one

daily, one “with popular vestibule sleeping-car,” error, either in excluding the evidence offered by the “with drawing-room and hotel-car," aud ono with defendant, or in the charge to the jury. The court drawing-room sleeping-car.” It gavo notice that "pass- only applied to a new state of facts, principles very age, excursion, and sleeping-car tickets ” could be pur- generally recognized as fundamental in the law of chased at the defeudant company's office in Chicago. passenger carriers. Those thus engaged are under an Referring to the "Fort Wayne and Pennsylvania obligation, arising out of the nature of their employline,” the same card announced that “no road offers ment, and on grounds of public policy, vigorously enequal facilities in the number of through trains forced, to provide for the safety of passengers whom equipped with Pullman palace sleeping-cars." It states, they have assumed, for hire, to carry from one placo among the advantages of the “Pittsburg, Fort Wayne to another. In Philadelphia & Reading Railroud and Pennslyvania through line,” that the latter was Company v. Derby, 14 How. 486, it was said that when the “ only line running three through trains, with carriers undertake to convey persons by the powerful Pullman palace cars," aud “the only line ruuning and dangerous agency of steam, public policy and sleeping-cars from Chicago and intermediate stations safety require that they be held to the greatest possible to Philadelphia without change.” The same card gave care and diligence that the personal safety of passenthe rates charged for berths and sections in Pullman gers should not be left to the sport of chance, or the negsleeping-cars from Chicago to points east of that city.ligence of careless agents. This doctrine was expressly

The defendant, to maintain the issues on its part, affirmed in Steamboat New World v. King, 16 How. offered to prove:

474. In Stokes v. Saltonstall, 13 Peters, 191, affirming 1. That the sleeping-car in which the accident oc- the decision of Chief Justice Taney on the Circuit, we curred, and all the sleeping-cars then and theretoforesaid, that although the carrier does not warrant the on the defendant's line since the 27th January, 1870, safety of the passengers at all events, yet his underwere owned by the Pullman Palace Car Company, a taking and liability as to them go to the extent that corporation of the State of Illinois, and not by the de- he, or his agents, where he acts by agents, shall possess fendant; that said sleeping-cars were run in the same competent skill, and as far as human care and foretrains with the defendant's cars; that holders of rail- sight can go, he will transport them safely. The prinroad tickets were entitled to ride in said sleeping-cars, ciples there announced were approved in Railroad provided they also held sleeping-car tickets.

Company v. Pollard, 22 Wall. 350, where, speaking by 2. That the Pullman Palace Car Company, and it the present chief justice, we said that we saw no necesonly, issued tickets for sale, entitling passengers to ride sity for reconsidering Stokes v. Saltonstull. in said sleeping-cars; that such tickets were plainly These and many other adjudged cases, cited with distinguishable from railroad tickets, and were sold at approval in elementary treatises of acknowledged offices established by said company, and indicated as authority, show that the carrier is required, as to pasplaces for the sale of such tickets; that the plaintiff sengers, to observe the utmost caution characteristic purchased the sleeping-car ticket of the same person of of very careful, prudent men. He is responsible for whom he bought the railroad ticket; that the office injuries received by passengers, in the course of their where purchased indicated by plain lettering upon its transportation, which might have been avoided or door that it was a place for the sale of Pullman Palace guarded against by the exercise upon his part of extraCar Company tickets, as well as railroad tickets.

ordinary vigilance, aided by the highest skill. And 3. That the Pullman Palace Car Company employed this caution and vigilance must necessarily be expersons to take charge of its cars, and whilst in use tended to all the agencies or means employed by the they were in the immediate charge of a conductor and carrier in the transportation of the passenger. Among a porter employed by that company; that such con- the duties resting upon him is the important one of ductor and porter were the only persons who had providing cars or vehicles adequate, that is, sufficiently authority to manage and control the interior of said secure as to strength and other requisites, for the safe cars, and the berths and seats and the appurtenances conveyance of passengers. That duty the law enforces thereto.

with great strictness. For the slightest negligence or To this proof the plaintiff objected, and the objec- fault in this regard from which injury results to the tion was sustained, to which ruling the company ex- passenger, the carrier is liable in damages. Theso cepted.

doctrines to which the courts, with few exceptions, The court thereupon charged the jury that the have given a firm and steady support, and which it is proof tended "to show that the injury was received peither wise nor just to disturb or question, would, by reason of the negligence of the defendant's agents however, lose much, if not all, of their practical value, or servants, or by some negligence in the construction if carriers are permitted to escape responsibility upon of the car in which the plaintiff was riding.” To that the ground that the cars or vehicles used by them, and charge the company at the time excepted, upon the from whose insufficiency injury has resulted to the ground that it was unsupported by the testimony, and passenger, belong to others. because it assumed as a fact that the persons in charge The undertaking of the railroad company was to of the sleeping-car were the company's agents or carry the defendant in error over its line in consideraservants.

tion of a certain sum, if he elected to ride in what is The court further charged the jury that “the defend- known as a first-class passenger car; with the privilege, ant has offered in your presence to prove that the car nevertheless, expressly given in its published notices, in which the plaintiff was injured was not the car or of riding in a sleeping-car, constituting a part of the the actual property of the defendant, but was the carrier's train, for an additional sum paid to the comproperty of another corporation. But I instruct, as a pany owning such car. part of the law of this case, that if this car composed As between the parties now before us, it is not maa part of the train in which the plaintiff and other terial that the sleeping-car in question was owned by passengers were to be transported upon their journey, the Pullman Palace Car Company, or that such comand the plaintiff was injured while in that car, with- pany provided at its own expense a conductor and out any fault of his own, and by reason either of the porter for such car, to whom was committed the imdefective construction of the car or by some negligence mediate control of its interior arrangements. The on the part of those having charge of the car, then the duty of the railroad company was to convey the pasdefendant is liable."

senger over its line. In performing that duty, it could To that charge also the defendant excepted.

not, consistently with the law and the obligations We are of opinion that there was no substantial arising out of the nature of its business, use cars or vehicles whose inadequacy or insufficienoy, for safe jury should exclude from consideration any evidence conveyance, was discoverable upon the most careful in relation to the pecuniary condition of the plaintiff, and thorough examination. If it chose to make no the contention of the defendant is, that the original such examination, or to cause it to be made — if it error was not thereby cured, and that we should elected to reserve or exercise no such control or right assume that the jury, disregarding the court's perempof inspection, from time to time, of the sleeping-cars tory instructions, made the poverty of the plaintiff an which it used in conveying passengers, as it should element in the assessment of damages. Aud this, exercise over its own cars - it was chargeable ith although the record discloses nothing justifying the negligence or failure of duty. The law will conclu- conclusion that the jury disobeyed the direction of the sively presume that the conductor and porter assigned court. To this position we cannot assent, although by the Pullman Palace Car Company to the control of we are referred to some adjudged cases which seem to the interior arrangements of the sleeping-car in which announce the broad proposition that an error in the Roy was riding when injured, exercised such control admission of evidence cannot afterward be corrected with the assent of the railroad company. For the pur- by instructions to the jury, so as to cancel the excepposes of the contract under which the railroad com- tion taken to its admission. But such a rule would be pany undertook to carry Roy over its line, and in view exceedingly inconvenient in practice, and would often of its obligation to use only cars that were adequate seriously obstruct the course of business in the courts. for safe conveyance, the sleeping-car company, its con- It cannot be sustained upon principle or by sound ductor and porter were in law the servants and em- reason, and is against the great weight of authority. ployees of the railroad company. Their negligence, or The charge from the court that the jury should not the negligence of either of them, as to any matters in- | consider evidence which had been improperly advolving the safety or security of passengers while being mitted was equivalent to striking it out of the case. conveyed, was the negligence of the railroad company. The exception to its admission fell when the error was The law will not permit a railroad company engaged in subsequently corrected by instructions too clear and the business of carrying persons for hire, through any positive to be misunderstood by the jury. The predevice or arrangemeut with a sleeping-car company, sumption should not be indulged that the jury were whose cars are used by and constitute a part of the too ignorant to comprehend, or were too unmindful of train of the railroad company, to throw off the duty their duty to respect, instructions as to matters pecuof providing proper means for the safe conveyance of liarly within the province of the court to determine. those whom it has agreed to convey. 2 Kent's Com. It should rather be, so far as this court is concerned, (12th ed.) 600; 2 Pars. on Cont. (6th ed.) 218–19; Story that the jury were influenced iu their verdict only by on Bail., ss 601, 601a, 602; Cooley on Torts, 612; Whar- | legal evidence. Any other rule would make it neces. ton's Neg. (2d ed.), $ 627, et seq. ; Chitty on Carriers, sary in every trial where an error in the admission of s. p. 256, et seq., and cases cited by the authors.

proof is committed, of which error the court becomes It is also an immaterial circumstance that Roy, when aware before the final submission of the case to the injured, was not sitting in the particular sleeping-car jury, to suspend the trial, discharge the jury, and to which he had been originally assigned. His right, commence anew. A rule of practice leading to such for a time, to occupy a seat in the car in which bis results cannot meet with approval. friend was riding, was not, and under the facts dis- 3. There was, however, an error committed upon the closed, could not be questioned.

trial, to which exception was duly taken, but which Whether the Pullman Palace Car Company is not does not seem to have been remedied by any portion of also and equally liable to the defendant in error, or the charge appeariug in the bill of exceptions. The whether it may not be liable over to the railroad com- plaiutiff was permitted, against the objection of the pany for any damages which the latter may be required defendant, to give the number and ages of his chil. to pay on account of the injury complained of, are dren -a son ten years of age, and three daughters of questions which need not be here considered. That the ages, respectively, of fourteen, seventeen and corporation was dismissed from the case, and it is not twenty-one. This evidence does not appear to have necessary or proper that we should now determine any been withdrawn from the consideration of the jury. question between it and others.

It certainly had no legitimate bearing upon any issue 2. Upon the trial below the plaintiff was allowed, in the case. The manifest object of its introduction against the objection of defendant, to make proof as was to inform the jury that the plaintiff had infant to his financial condition, and to show that after being children dependent upon him for support, and conseinjured, his sources of income were very limited. quently, that his injuries involved the comfort of his

This evidence was obviously irrelevant. The plaint- family. This proof, in connection with the impairment iff, in view of the pleadings and evidence, was entitled of his ability to earn money, was well calculated to to compensation and nothing more for such damages arouse the sympathies of the jury, and to enhance the as he had sustained in consequence of injuries received. | damages beyond the amount which the law permitted, But the damages were not in law dependent in the that is, beyond what was, under all the circumstances, slightest degree upon his condition as to wealth or fair and just compensation to the person suing for the poverty. It is manifest, however, from the record, injuries received by him. How far the assessment of that the learned judge who presided at the trial sub-damages was controlled by this evidence as to tho sequently recognized the error committed in the ad- plaintiff's family it is impossible to determine with mission of that testimony. After charging the jury absolute certainty; but the reasonable presumption is that the measure of plaintiff's damages was the pecu- that it had some influence upon the verdict. niary loss sustained by him in consequence of the in- The court, in a manner well calculated to attract the juries received, and after stating the rules by which attention of the jury, withdrew from their considerasuch loss should be ascertained, the court proceeded: tion the evidence touching the financial condition of “But the jury should not take into consideration any the plaintiff, but as nothing was said by it touching the evidence touching the plaintiff's pecuniary condition evidence as to the ages of his children, they had the at the time he received the injury, because it is wholly right to infer that the proof as to those matters was immaterial how much a man may have accumulated not withdrawn, and should not be ignored in the asup to the time he is injured; the real question being sessment of damages. how much his ability to earn money in the future has For this error alone the judgment is reversed, been impaired.”

and the cause remanded for a new trial. It is so orNotwithstanding this emphatic direction that the dered.

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