delivered the opinion of the court.
This is an action for personal injuries brought by an employé against a railroad company. It was tried in the Circuit Court, whеre the plaintiff had a verdict. It then was taken to the .Circuit Court of Appeals on a writ of error and bill of excep
*469
tions by the company, 112 Fed. Rep. 35, and now is brought here on a further writ of error, the company being a United States corporation. A good deal of the argument for the railroad is devoted to disputing the testimony of the plaintiff below and arguing that the verdict was excessive, but of course we have nothing to do with that.
New York, Lake Erie
&
Western Railroad
v.
Winter,
Behymer had been in the employ of the company as a brakeman about three months. On February 7,1899, at Big Sandy, in Texas, hе was ordered by the conductor of a local freight train to get up on some cars standing on a siding and, let off the brakes, so that the engine might move them to the main track and add them to the train. The tops of the cars wеre covered with ice, as all concerned knew. He obeyed orders; the engine picked up the cars,, moved to the main track and stopped suddenly. The cars ran forward to the extent of the slack and back again, as they were moving up hill. The jerk upset Behymer’s balance, the bottom of his trousers caught in a prоjecting nail in the running board and he was thrown between the cars. It is true that the jury might have drawn a different conclusion from his evidence or have disbelieved it in essential points, but they also were at liberty to find, as they must be taken to hаve found, that the foregoing statement is true. The car belonged to another road but was in the charge of thе defendant company, and, according to the statement of the counsel for the plaintiff in error, had bеen inspected before the accident, although we should have doubted whether the testimony meant to go so far.. Behymer based his claim upon negligence in stopping the cars so suddenly with knowledge of his position and the slippery condition of the roof of the car, and upon the projection of the nail, which increased the danger and contributed to Ins fall. It should be added that by a statute of Texas if there was negligence thе fact that it was the *470 negligence of a fellow servant was not a defence. -General Laws, Texas, 1897, Spеcial Session, c. 6, § 1; 2 Sayles, Texas Civil Stat. 1897, art. 4560 f.
The fundamental error alleged in the exceptions to the chаrge is that the court declined to rule that the chance of such an accident as happened wаs one of the risks that the plaintiff assumed, or that the question whether the defendant was liable for it depended on whether the freight train was handled in the usual and ordinary way. Instead of that, the court left it to the jury to say whether the trаin was handled with ordinary care, that is, the care that a person of ordinary prudence would use under the same circumstances. This exception needs no discussion. The charge embodied one of the commоnplaces of the law. What usually is done may be evidence of what ought to be done, but what ought to be donе is fixed by a standard of reasonable prudence, whether it usually is complied with or not.
Wabash Railway Co.
v. McDaniels,
However, the plaintiff did not rely on the management of the train alone. Thе projecting nail was another element in his case. The jury were instructed with regard to that, that the railroad сompany was not liable unless there was a nail there improperly projecting, and a reasonable inspection would have discovered and remedied the defect. The car was in. the custody of the company. There is no suggestion that the company had not had an opportunity to inspect, and the contrary was assumed by a request for instructions on the part of the company. Indeed, as we have said, its counsel intеrprets the evidence as meaning that the car had been inspected before *471 the accident. It is nоt pressed that there was error on this point. See Mackin v. Boston & Albany Railroad, 135 Massachusetts, 201; Glynn v. Central Railroad, 175 Massachusetts, 510, 512. The jury were instructed properly on the subject of assumption of risks and contributory negligence, and we think it unnecessary to deal more specifically with this part of the case.
. It was argued that Behymer had aggravated the injury by refusing proper surgical treatment. With regard tо this the jury were instructed in substance, but at more length, that it was his duty to submit to all treatment that a reasonably prudent pеrson would have submitted to in order to improve his condition, and that no damages could be allowed which might havе been prevented' by reasonable care. It is suggested that, as a prudent man, he might , have postponed recovery from his injury to' recovery of damages. The instructions plainly excluded such, a view. The argument hardly is serious. We have examined all the minute criticisms on the rulings and refusals to rule, and discover no error. We deem it unnecessary to answer them in greater detail. ■
Judgment affirmed.