Mexican Cent. Ry. Co. v. Jones

SHELBY, Circuit Judge. This action was brought by S. S. Jones, a citizen of Texas, against the Mexican Central Bailway Company, a corporation under the law of Massachusetts. It is an action for damages for personal injuries received by the plaintiff while acting in the capacity of conductor of one of the defendant’s freight trains. It resulted in a verdict for the plaintiff in the sum of $5,500. From a judgment on that verdict the defendant sued out a writ of error to this court. The injury was received on August 20, 1898, at El Abra, in the republic of Mexico. The injury was alleged to have occurred because of a defect in one of the brakes. . The defect was such that the catch or dog failed to stay in the ratchet wheel. The brake was so out of order that the ratchet wheel would not so work as to cause the brake to hold the car. While the plaintiff was acting in his capacity as conductor of the freight train, it became necessary to couple the engine and cars then in his charge to two ballast cars which were standing on the side track on what is properly called a “Y.” Immediately in the rear of, and standing near to or against the rear end of, the rear ballast car, and coupled to the same, was a flat car; and, in order to move the two ballast-cars, it was necessary to uncouple them from the flat car. This was done. When the two ballast cars were coupled to the train in charge of the plaintiff, the train, with the two ballast cars, was moved away from the flat car, and was moved off down the track towards another switch. The plaintiff, in order to flag another train which he supposed and believed would come up, was walking along the track in the rear of his train, and looking out for the other train, when the flat car, from which the two ballast cars had been detached, ran upon him and severely injured him. These and other facts were alleged in the petition, and the evidence tended to prove them. The evidence showed that if the brake had been in proper condition the flat car would have been .held, and the plaintiff would not have'been injured. Other ma [69] terial facts are stated in the charge of the court, which is given in the statement of the case. The following articles from the Federal. Penal Code of Mexico are set out in the petition, and shown by the; record to be the law of Mexico: “Art. 326. No person can be charged with civil liability upon an act or omission contrary to a penal law, unless it be proven that the party sought' to be charged usurped the property of another, or that without right ha caused by himself, or by means of another, damages or injuries to the plain-, tiff, or that the party sought to he charged being able to avoid the damages, they were caused by a person under his authority.” “Art. 184. Companies [railway] are liable for all faults or accidents which occur through tardiness, negligence, imprudence or want of capacity of their employees.” The defendant filed a plea to the jurisdiction of the court. This plea, at great length, set out the laws of the republic of Mexico, and averred that they were so vague, uncertain, and dissimilar to the laws of “our country,” that the court, should not entertain jurisdiction and attempt to enforce the same. The plaintiff filed exceptions to this plea to the jurisdiction, and the court sustained the except tions. The first assignment of error relates to this ruling of .the court. The question raised by this assignment of error has already been fully disposed of by this court. In Evey v. Railroad Co., 81 Fed. 294, 26 C. C. A. 407, 38 L. R. A. 387, this court held: “The right of an employé of a railroad company, injured in the republic of Mexico by the negligence of the company, to recover in a civil action damages for such injury under the law of that republic, may be enforced in a federal court in the state of Texas having jurisdiction of the parties' and of the subject-matter; that law being neither so vague and uncertain, nor so dissimilar to the law of the state of Texas, as to prevent it from being, so enforced, and both parties being citizens of the United States.” ! This case has been reaffirmed in Railway Co. v. Marshall, 91 Fed. 933, 34 C. C. A. 133. The plea to the jurisdiction having been disposed of, the case went to trial on the defendant’s answer, denying all the allegations of the petition, and averring that the injuries resulted through the plaintiff’s own wrong and contributory negligence. The evidence on the.’ trial, without conflict, showed that the brake was in the condition, alleged in the petition, and that its condition was unknown to the plaintiff.. It was shown that the plaintiff told the brakeman to cut, off the ballast cars from the flat car. He then directed one of the, brakemen to get on the flat car and see that the brake was securely set. He gave the same direction as to the brake on the coal car,The brakeman followed these instructions. The brake, however, being out of fix, did not hold the car. There are thirteen assignments of error relating to the charge of. the court below. Some of them relate to portions of the charge as given, and others to the refusal of the court to give charges requested. The case, we think, can he more briefly disposed of and better' understood by giving the charge of the court in full. It is therefore set forth in the statement. The charge of the learned judge so com-; pletely covers the controverted points that it needs no comment. It very fairly presented the case to the jury. We find no error in it to, the injury of the plaintiff in error. ‘ [70] The several special charges asked by the defendant below each concludes with instructions to find a verdict for the defendant, in these or similar words: “You are therefore charged to find for the defendant;” .or, “Plaintiff having failed in. this duty, and his default having resulted in this injury, he cannot recover.” These instructions were, of course, properly refused. It was a case proper to be left to the jury. We find no error in the record to the injury of the plaintiff in error. The judgment of the circuit court must be affirmed.