destroyed his constitution, and rendered him incapable of performing the labor of a healthy, athletic man. He admitted that during the fifteen months thereafter in which he had labored for the defendants he had never mentioned the fact of his having been so injured to any officer or agent of the company, had performed his duty as an engineer, had not consulted a physician, but had taken various kinds of patent medicine that he saw advertised in the papers, and which he supposed might be beneficial in his case. He introduced testimony tending to show that Hoxie was not a competent engineer, or qualified to discharge the duties of a conductor, and had been at times addicted to the use of spirituous liquors, and he claimed that these facts were known to the officers of the company.

On the part of the defendants testimony was introduced tending to show that Hoxie was a man of more than ordinary intellect, and better educated than men in his position; that when he came into the employ of the defendants he was reputed to be a capable, careful and sober man; and that in the three years he had been in their employ, prior to this accident, he had shown himself in every respect worthy and competent. Also that Bassett had been all that time associated with Hoxie, and had had every opportunity to judge of his fitness to run this freight train and had made no complaint. They also offered testimony to prove that at the time of the collision, Bassett said to several persons, that he landed well in jumping from his engine, and had not suffered any injury; and further, that during the fifteen months he remained in their employ, he did not complain of any lameness, and performed labor as an engineer, which could only be performed by a healthy and very athletic man. It also appeared in evidence, that immediately after the injury, the plaintiff, in company with several employees of the defendants, walked from the place of the accident to Norwich, a distance of ten or twelve miles.

L. F. S. Foster and J. Halsey, (with whom was J. F. Crocker,) for the plaintiff, cited Patterson v. Wallace, 28 Eng. L. & Eq. 48; Marshall v. Steward, 33 Ib. 1; Stevens v. Maine R. R. Co. 13 Law Rep. 74; Story, Agency, 453; Dixon v. Ranken, 1 Am. R. R. Cas. 569, and cases cited; Segur v. Kilingsley, 22 Conn. 290."

J. T. Wait and E. Perkins, for defendants, relied on Farwell v. Boston & Worcester R. R. Co. 4 Met. 49; Hayes

v. Western R. R. Corp. 3 Cush. 370; King v. Boston & Worcester R. R. Co. 9. Cush. 112; Albro v. Agawam C. Co. 6 Cush. 75; Coen v. S. U. R. R. Co. 1 Selden, 492; Brown v. Maxwell, 6 Hill, 592; Shields v. Yonge, 15 Georgia, 349; Honner v. Illinois Cen. R. R. Co. 15 Ill. R. 550; Cook v. Parham, 24 Ala. 21.

BUTLER, J., charged the jury substantially as follows:Should you be satisfied, upon a consideration of the testimony, that the plaintiff sustained the injury, which he claims to have sustained upon that occasion, you will then go farther and inquire, whether the company were so guilty of negligence in committing the freight train, which caused the collision, to the care and management, or the sole care and management, of Benjamin Hoxie, that they are liable for that injury.

The company, like all common carriers, are liable for any injury received by passengers, in their persons, in consequence of their negligence, or the negligence of their servants. But it is claimed that they are not liable to one employee, or servant, for the negligence of another employee, or, at least, are not liable when they have used ordinary care in selecting and employing him.

The question whether a railroad corporation is liable to employees for negligence, and, if so, how far liable, has not received a judicial determination in this State. Several recent English and American decisions have been read by counsel, which, with an exception or two, seem to establish the doctrine that such corporations are not liable to their servants in such cases, and, on the ground, that the servant assumes the risk of the employment, and is paid accordingly,—and also because he has had an opportunity to observe the conduct and capacity of his fellow servant, and may complain, or leave the service. But those cases did not turn on the questions raised here, viz., whether the company are liable to their other servants for employing an unskilful, or incompetent, or intemperate engineer; or if competent as an engineer merely, for committing to his sole care and conduct a through freight train.

It is doubtless true, as a legal presumption, and in fact, that engineers take the risk attending their business, into consideration, when they are engaged in the employment, and that higher wages are demanded and paid on that account; and that, therefore, a different rule should govern, as between them and the company, in relation to the negli

gence of other employees, from that which governs as between the company and third persons. And it may be true, that, when the engineer is employed in immediate connection with another incompetent or negligent servant, whose capacity or conduct he may observe or control, he is bound to report to his employers, or leave the service, and that if he does neither, he may properly be held to have acquiesced in the continued employment of the negligent servant, or to have voluntarily assumed the additional risk attending such employment. But, in my judgment, neither a contemplation of the risk by the servant, nor an opportunity to observe the capacity and conduct of his fellow servant, should absolve the company from all duty or liability to their employees. Engineers and other servants should be holden to have contemplated and assumed the risks, and only the risks, incident to running a road managed with ordinary care and prudence, and run by other competent, steady employees, and should be further holden to have assumed the additional risk attending the employment and service of incompetent or intemperate persons, only in cases where they have had a fair and reasonable opportunity to observe or know, that they were running such additional risk, and to remove it by remonstrance, or avoid it by an abandonment of the service. And the company should be holden to the exercise of ordinary and reasonable care and prudence in the selection of their engineers and other agents, and in watching over them in the arrangement of their trains and putting the necessary force upon them, so that in business so dangerous as this, no unnecessary risk be incurred by their employees, by reason of unsafe arrangements, or want of watchfulness over those in their employ, or the employment of incompetent persons.

The first question for you, therefore, upon this part of the case, will be, whether the officers of the company exercised ordinary care and prudence in the original or continued employment of Hoxie, and in committing this through freight train to his sole management and control.

And here it will be important for you to look at the precise character of the negligence imputable to him. It does not appear from the circumstances attending the transaction, that he had not a competent knowledge of the nature of his engine, or competent skill in working it. His negligence consisted in leaving the station at Jewett City, when the afternoon way train was so nearly due, that he

The

had not time to reach the next station before it left. expression used to the switch tender, as he was leaving, would seem to indicate that he thought he could reach the next station in time. But there was a down freight train upon the road, also, to which he may have referred, and his explanation, given at the time of the collision, as testified to by the witnesses on both sides, shows that he was attentive to the approach of the down freight train only, and had, as he stated, entirely forgotten the fact, that the down way passenger train was then above him, and nearly due. The precise negligence, then, consisted in a forgetfulness of the all-important fact that there was a down passenger train above him, then nearly due, which was entitled to the road, and which it was his duty to avoid. It was gross negligence. The fact that he usually ran his train up in the latter part of the night and early part of the day, and then met a different set of trains, and that he had been detained several hours by the failure of his engine, and the necessity of getting another, and that the trains which he usually met had all gone down, do not excuse it. A moment's reference to the time-card which he had, or should have had, in his possession, would have informed him what trains were upon the road, and when due at that station.

This question involves an inquiry in relation to the intelligence, prudence and habits of Hoxie, and you will look carefully at the testimony and say whether there was an original want of intelligence and prudence, or if not, whether his native intelligence and prudence had become deadened, or had been rendered obtuse by intemperance, or whether he was then intoxicated, and to which of these causes, or what cause, the negligent forgetfulness and inattention was attributable; and whether his original want of intelligence and prudence, or the loss of it, or his habits of intemperance, if either existed, or the cause, whatever it may have been, was such as the officers of the company, in the exercise of ordinary and reasonable care and prudence could have discovered; and such as should have prevented them, in the exercise of just care and prudence, from committing the freight train in question to his sole charge and conduct. If you find that the company did not exercise such care and prudence, in committing the train to the control of Hoxie, and the risk of the plaintiff was thereby increased, and he did not know it, and had not a reasonable opportunity to know, and so avoid it, the

company are liable, and your verdict, so far as this question is involved, should be for the plaintiff. But if you find that the company did use reasonable and ordinary care in relation to the employment of Hoxie and his charge of this train, or if they did not, that the plaintiff, with a full knowledge of the facts, acquiesced in his employment and assumed the additional risks incident to it, then the defendants are entitled to your verdict, whatever the injuries to the plaintiff may have been.

If you should be of opinion that the plaintiff was injured, in the manner and at the time he claims to have been, and that the company were guilty of negligence upon the principles I have stated, and that the verdict should be for the plaintiff, you will give him damages commensurate with the injuries, bodily and mental, which he sustained in consequence of the collision; and may also take into consideration the expenses which he has incurred in prosecuting his suit, beyond what are properly taxable in a bill of cost. But in looking at the nature and extent of the injury, it is incumbent upon you to distinguish between those which are the natural and necessary results of the accident, and those which are the results of the negligence of the plaintiff, or to which his negligence, since the accident, has essentially contributed. The plaintiff claims to have suffered a violent concussion of the chest, by coming in contact with the ground,- that it has continued weak, and that he now has such soreness and pain that he is kept awake nights; that his health is impaired, and that he is unable to earn the wages of an able bodied and healthy man. But he admits that he made no complaint at the time, and sought no relief from duty,- that he employed no physician, and merely took medicines which he saw advertised, expecting that the weakness would wear off. The defendants claim that it was their custom to favor their engineers when unwell, and especially if injured by accidents upon the road; and to give them every opportunity for recovery and restoration to health. That the plaintiff continued in their employ, as usual, without apparent or known injury; and their time-book shows that he so continued for fifteen months, not only making his full time, but twenty-eight and one half day's over work during that period. Now if the plaintiff, by the want of ordinary care and caution, and by unnecessary and continued and increased labor and exposure, and by his neglect to procure and pursue proper advice, has per