ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
MR. JUSTICE PECKHAM delivered the opinion of the court.
The plaintiff below was an ordinary day laborer employed under a section boss or foreman to keep a certain portion of the roadbed of the defendant in repair. The foreman had power to employ and discharge men, and to superintend their
work, and was himself a workman. He employed the plaintiff, who, with the rest of the men employed in the gang -- some four, five or six -- was carried to and from his work daily on a hand car worked by the men themselves.
In August, 1886, on the 28th of the month, an accident occurred as the men were on their way to their work. They were using a hand car with what is alleged to have been a defective brake. The foreman had complained of it to the yardmaster a short time before, who had promised a better one. In the meantime and as a temporary makeshift, the foreman had provided the car with a brake which consisted of a bit of wood, 4 X 4, fastened on the side of the car with a bolt, and the long arm acted as a lever and pressed the shorter portion of the timber against the wheel. In that way the car had been run for a day or two before the morning of the accident. On that day, the plaintiff with the rest of the men in the gang and the foreman started on the hand car to go over a certain portion of the section to inspect the condition of the road. They were running the car very rapidly under the direction and supervision of the foreman and had arrived at a narrow cut in the road around a curve, when they were suddenly confronted with a freight train coming through the cut in the opposite direction. There had been no warning or signal of any kind given by any of the employes on the freight train of its approach, and plaintiff below knew nothing of the fact that any freight train was expected. Efforts were made to stop the hand car, and as the speed did not seem to be slackened in time, plaintiff became frightened and undertook to jump from the front end of the car, when he stumbled over some tools that were on the car and fell between the rails in front of it. As the hand car approached him he put his foot up against it in order to prevent its running over him, but the impetus of the car was too great, and it ran over and doubled him up and wrenched his spine, causing him great internal injuries. The other hands jumped off the car, removed it from the track and took the plaintiff out of danger before the freight train passed by.
The injuries of the plaintiff were of a very serious nature, and
his legs became paralyzed, and he was rendered a cripple for life. He commenced this action against the defendant below to recover damages on account of the negligence of the agents and servants of the defendant. The negligence claimed consisted in:
1. The defective break on the car, which it is alleged was an appliance for the prosecution of the work on the defendant's road and necessary to be used to enable the employes to perform their duties, and that as such appliance it was the duty of the defendant to see that it was reasonably safe and fit for the purpose intended.
2. The negligence of the foreman in charge of the gang, who directed the speed of the hand car and ran it at a hazardous rate of speed, when he knew that a train coming towards him was expected, while the other members of the gang were ignorant of that fact.
3. The negligence of the train hands on the approaching train in giving no signals of their approach around the curve and through the cut, although they were near a public crossing and some signals were necessary on that account.
Upon the trial evidence was given tending to prove the above facts, and, among other things, the judge ...