Lee v. S. Pac. R.R. Co.
Synopsis
Negligence—Damages—Province of Jury—Excessive Verdict.—In actions for negligence, the law does not attempt to fix any precise rules for ascertaining what is a just compensation, but from the necessity of the case, leaves the assessment of the damages to the good sense and judgment of the jury, whose province it is to make the assessment; and their verdict, though subject to review, will not be disturbed merely upon the ground that the damages are excessive, nor because the opinion of the court differs from that of the jury, unless it appears that the excess was given under the influence of passion or prejudice.
Id.—Order Granting a New Trial—Discretion.—The appellate court in reviewing the action of the court below, in granting a new trial for damages appearing to have been given under the influence of passion or prejudice, will not reverse the order merely because it differs from the trial court as to what would have been just compensation, unless the difference of opinion is such as to justify the conclusion that the court abused its discretion.
Id.—Defective Machinery—Assumption of Risk—Knowledge of Employee.—In order to constitute an asumption of the risk of defective machinery by an employee, such as to bar a recovery for personal injuries received therefrom, it is not only necessary that the employee should know of the defects in the machinery, but the danger arising from the defects must also be known or reasonably apprehended by him.
The Court. Action to recover damages for personal injuries. The plaintiff had judgment, and now appeals from an .order granting defendant’s motion for a new trial.
In the latter part of July, 1888, plaintiff was employed by defendant as a brakeman on a freight train, and continued in that service until November 13, 1888, when he sustained the injury complained of. At the time of the accident he was about twenty-three years of age, [119]had from childhood been in good health, and prior to his employment by defendant had no experience in railroad service.
The additional facts disclosed by the record, so far as necessary to be stated, are that on the day of the accident the train on which plaintiff was employed had barely time to reach Honby siding in time for the southbound passenger train to pass. The “helper” engine was in front of the train engine, and when near the siding cut loose from the train and went ahead to couple to a flatcar on the sidetrack and push it forward so as to let the freight train in on the siding, plaintiff going with the helper to make the coupling. After he let the engine in on the siding he stepped upon the pilot to make the coupling, and as they were approaching the flatcar he stooped to raise the coupling-bar, and when it was partially raised the engine “jolted” in running over a defect in one of the rails, and caused Ms foot to slip off the bottom frame of the pilot; that the sidetrack was only partially ballasted, which permitted his foot to catch against a tie and prevented him from drawing it up, and that in consequence he was thrown off and one of the -wheels of the engine ran over his leg, making it necessary to amputate it about four inches below the knee. He remained in the hospital seven months.
As to the condition of the track he testified in substance that it was only partially ballasted, leaving a part of the tie exposed against which his foot caught; that this sidetrack was about in the same condition as the others along the road, that they were made of refuse iron, “ old rails that are hammered down and battered out, full of ridges and everything, .... full of hollows and ridges and chuck holes all through or all along in lots of places,” that the track was pretty well grown over with weeds and grass, that he never run over a sidetrack that wasn’t a mass of ruts and hollows all over it, and this was no exception to the rule.
Upon cross-examination he testified that all the side
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