154 F. 626 | 8th Cir. | 1907
This was an action by a fireman against his employer, the railway company, for the negligence of his fellow servant, the engineer, whereby he lost ;one of his hands. It arose in a jurisdiction in which the fellow-servant doctrine has been abolished. At the trial a physician had testified that he had made an examination of the stump of the plaintiff’s wrist at the preceding term of the court, and the railway company complains of the admission of the doctor’s testimony, to the effect that he found two or three suppurating holes at the end of the stump as large as the head of a lead pencil; that the cause of that condition was that the skin had sloughed at the side of the original amputation; that in getting the stump the flap had been so short that it left the skin adhering to the bone and pulled so tight that the circulation was interfered with so that the stump was very unhealthy from tension; that, in order to make the arm able to support an artificial appliance, it would be necessary to amputate it farther back and to get a cover of good, healthy skin; and that, if it had been amputated in such a manner as to give an ample flap, it should have been healed completely within ten days and should have stayed healed. At the conclusion of the trial the court instructed the jury that it was not claimed that the defendant was responsible for any injury because the arm was ■ improperly treated or because there was no sufficient flap left to cover the stump. In view of this charge, no error is perceived in the receipt of this testimony. Evidence of the actual result of the injury and hence of the condition of the arm up to the time of the trial of the action was certainly competent because the character and permanence of the injury were material. Evidence to show to what extent this condition was caused by the wrong of the defendant and to what extent it was the result of some independent cause, such as the malpractice of the surgeon who treated it, was undoubtedly relevant because the defendant was liable for the former and exempt from liability for the latter. For these reasons the specifications of error which relate to this evidence cannot be sustained.
The next alleged error is the refusal of the court to instruct the jury to return a verdict for the defendant, and this presents two questions: Was there evidence sufficient to sustain a finding that the injury was caused by the negligence of the engineer? And, did the evidence conclusively show that the fireman was guilty of contributory negligence? The train upon which these men were serving consisted of an engine and 31 cars. The air was applied to the seven cars next to the engine, so that the air brakes thereon would operate, but it was cut off from the remaining 24 cars. The train stopped at a station upon a substantially level track to permit a car to be unloaded, and the fireman informed the engineer that he would go forward and clean out the ashpan; but the latter requested him to wait until he pulled the train up again and made another stop, because the engine was then too near the station. In order to clean the ashpan, it was necessary for the fireman to get in under the engine on its left side between the forward driver and the rear truck and to rake the ashes out of the pan with a long-handled hoe. It was dangerous to him to move the engine while he was under it
The amount of damages found by a jury under the influence of passion or prejudice (Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Homestake Min. Co. v. Eullerton, 16 C. C. A. 515, 553, 69 Fed. 923, 931), and an order granting or refusing to grant a new trial, which the court has the power to. make, are not reViewable in a federal appellate court (City of Manning v. German Ins. Co., 46 C. C. A. 144, 146, 107 Fed. 52, 54; Southern Pacific Co. v. Maloney, 69 C. C. A. 83, 136 Fed. 171).
The judgment below must be affirmed; and it is so ordered