2 Dill. 259 | U.S. Circuit Court for the District of Nebraska | 1871
In support of the motion for a new trial, it is urged by the defendant’s counsel that the court erred in that portion of the second division, its charge to the jury commencing with, “But I draw this distinction,” and ending with the words, “for, in such a case, they are not, in any proper sense, ‘fellow servants’ in the same common service.” I fully appreciate the difficulties that surround the question here presented, and I do not feel certain that this particular case can be discriminated from those in which it is held that the com- | mon employer of two servants is not liable ] to one for the act or negligence of the other | in the course of the common employment.
On the trial it was contended by the defendant that the jury could in this action only consider and allow for such damages as had happened when the action was brought, while the plaintiff maintained that the jury might take into consideration all the damages that had been sustained up to the day of trial. On this point the court charged as requested by the plaintiff, and there is little doubt that this was a view sufficiently favorable to the defendant. It has been held, indeed, that, in proper cases, damages prospective in their nature, but certain to result from the wrongful act, may be considered and allowed, when they do not form the basis of a new action. Wilcox v. Plummer, 4 Pet. [29 U. S. ] 172; cases cited, 2 Greenl. Ev. §§ 268a, 268b.
Judgment will be entered upon the verdict for the sum of $3,056.58.
Judgment accordingly.