Ross v. The Chicago, Milwaukee & St. Paul R'y Co. negligent or unskillful, it is his duty to give notice to the company, but it is not necessary that he should at once quit the service of the company. After having given notice, he may continue in the service of the company for a reasonable time, in the expectation that the company will take proper action in the premises and discharge the unworthy and incompetent person. And if, within this reasonable time after notice has been given, and before the objectionable person has been discharged, the party is injured by the negligence of the person complained of, the company is liable. And I say to you that two or three or four weeks would not, in my judgment, be considered an unreasonable time in which, under all the circumstances, a party might delay for the action of the company, upon such complaint having been made. I think of nothing further, gentlemen, except to call your attention to the question of damages, in the event that you find a verdict for the plaintiff. You will take into consideration upon that subject, if your verdict is for the plaintiff, all the facts and circumstances which have been shown to you in evidence. You will consider carefully the medical testimony and the testimony of the plaintiff, and all the testimony that there is before you touching the nature and the extent of the plaintiff's injuries and the question as to their probable duration — as to whether they are temporary or permanent their effect upon his ability to earn a living, to pursue his ordinary avocation since the accident and up to this time, and their probable effect upon his health and strength and his ability to pursue his avocation or to earn a living in the future. You will consider the pain and suffering which have been the result of the accident and injury and what is probable in the future. You will take into account his expenses for physician and medicines, if that has been established before you to your satisfaction; and upon all the facts in the case you will determine, as best you can, what would be a reasonable and fair compensation for the injuries of the plaintiff, and you will allow him that, and will not allow him what would be considered an unreasonable or Ross v. The Chicago, Milwaukee & St. Paul R'y Co. Of course it is very The events of the fuAll you can do, gen excessive amount. It is for you to say, under the circumstances, what would be fair and just. difficult to estimate things of this kind. ture cannot be foretold with certainty. tlemen, is to take all the facts that appear before you in this case and reach the best result that you can upon that branch of it, in the event, of course, that you find upon the other questions that I have called to your attention in favor of the plaintiff. The jury found a verdict for plaintiff for $10,500. NOTE.-1. The servant assumes the ordinary risks of his employment, but if through negligence, fraud or malice the master subjects him to risks greater than those which fairly and properly belong to his employment, and he is injured in consequence, the master is liable. And it is negligence on the part of the master if he, either personally or through his vice principal, interferes, and either does or commands the doing of the act which caused the injury. Thompson on Negligence, vol. 2, p. 970 et seq. 2. The authorities are not harmonious upon the question, who are to be regarded as fellow servants engaged in a common employment within the meaning of the rule discussed in the foregoing charge. The general rule, according to the weight of authority, would seem to be, that all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants who take the risk of each others' negligence. Thompson on Neg. vol. 2, p. 1026, § 31, and cases cited. There are, however, cases somewhat exceptional in their nature, of which the principal case is an illustration. These exceptional cases grow out of the reason which is generally given for the rule itself. That reason is, that it is desirable, upon considerations of public policy, to make it the interest of each one of such employees to look after and encourage carefulness and fidelity in all the rest. This reason cannot apply to a case where the relation of superior and subordinate exists, because the situation of the subordinate allows him no influence over the superior. Cooper v. Mullins, 30 Ga. 150; Louisville R. Co. v. Carens, 9 Bush, 559; Nashville, etc. R. Co. v. Jones, 9 Heisk. 27; Toledo, etc. R. Co. v. O'Connor, 77 Ill. 391. 3. The rule laid down in the charge can probably be well supported as within the general rule itself, because the engineer and conductor were not at the time of the accident working "under the same control." The engineer was under the control of the conductor so far as the receipt of orders by the former was concerned, and it would be a gross misapplication of the rule to deny him a remedy for injuries resulting from the failure of the conductor to Erwin v. Meyrose. give him the orders. Having entrusted to the conductor the duty of giving orders to the engineer concerning the running of trains, the company made the conductor a vice-principal, and placed the engineer not only in a position of subordination, but completely within the power and at the mercy of the conductor. The general rule that the superior and inferior are not fellow servants in the same common employment is recognized in the following cases: Little Miami R. Co. v. Stevens, 20 Ohio, 415; Cleveland, etc. R. Co. v. Keary, 3 Ohio St. 201; Berea Stone Co. v. Kraft, 31 Ohio St. 287, 292; Louisville, etc. R. Co. v. Collins, 2 Duv. 114; Whaalan v. R. Co. 8 Ohio St. 249; Railroad Co. v. Fort, 17 Wall. 553. And see also Hough ▾. Railway Co. 100 U. S. 213, where it is laid down that an exception to the general rule exempting the common master from liability to a servant for injuries caused by the negligence of a fellow servant, arises from the obligation of the master not to expose the servants to perils or hazards against which they may be guarded by proper diligence. Grizzle v. Frost, 3 Fost. & Fin. 622 (Charge by Lord Cockburn, C. J.); Mann v. Oriental Print Works, 11 R. I. 152; Cooper v. R. Co. 44 Iowa, 134; Cook v. R. Co. 63 Mo. 397; Whalen v. Centenary Church, 62 Mo. 226; Louisville, etc. R. Co. v. Bowler, 9 Heisk. 866; Nashville, etc. R. Co. v. Jones, 9 Heisk. 27; Chicago, etc. R. Co. v. Bayfield, 37 Mich. 205; Booth v. Boston, etc. R. Co. 73 N. Y. 38; 67 N. Y. 593. See also Flike v. Boston, etc. R. Co. 53 N. Y. 550. 4. A servant does not, by merely continuing in the service after knowledge of the unfitness or negligence of a fellow servant, assume the risk of injury from the negligence of such fellow servant. He assumes the risk only in case, with such knowledge, he continues in the service without objection or protest, or without being induced by his master to believe that a change will be made. Krog v. Chicago, etc. R. Co. 32 Iowa, 357; Greenleaf v. Dubuque, etc. R. Co. 33 lowa, 52; Muldowney v. Illinois, etc. R. Co. 40 Iowa, 341; Lumley v. Caswell, 47 Iowa, 159; Crutchfield v. Richmond, etc. R. Co. 78 N. C. 300. IRWIN V. MEYROSE. (Eastern District of Missouri. March, 1881.) 1. BILL OF REVIEW - FAILURE OF COMPLAINANT TO APPEAR IN ORIGINAL SUIT. Where, upon the trial of a proceeding in equity for the infringement of a patent, the plaintiffs fail to appear, and the court examines the pleadings, exhibits and proofs, and orders a decree for the defendant, and afterwards the plaintiffs file a bill for review disclosing no error upon the record and setting up no new matter, a demurrer to such a bill for review will be sustained. Irwin v. Meyrose. 2. SAME-FAILURE TO TAKE TESTIMONY UNDER EQUITY BILL.- When a complainant in a bill in equity fails to take testimony within the three months' time prescribed by the 69th rule, and fails to obtain leave of court for further time to do so, the court will proceed to hear and determine the case as made upon the pleadings, proceedings and exhibits, and take such action with regard to the issues presented as the circumstances of the case may require. Noble & Orrick and Coburn & Thacher, solicitors for plaintiffs. Edward J. O'Brien, solicitor for defendants. Stat. sec. TREAT, District Judge. In September, 1879, a bill in equity was filed by plaintiffs against the defendants for alleged infringements of patents. An answer with notice was filed in due time as to anticipations, etc. (under United States Rev. 4920), looking to the impeachment of the validity of said patents, and a general replication was duly entered. Å few days before the time limited for taking testimony, the defendants' solicitor moved for the appointment of an examiner to take testimony in their behalf. As the plaintiffs had taken no testimony or given notice therefor, the court, to prevent unnecessary costs, withheld the order sought by defendants' solicitor, because, so far as disclosed, the plaintiffs had either abandoned their case or were willing to stand on the pleadings and exhibits. When the case was subsequently reached in due course on call of the "equity docket," the defendants answering the call, the court mero motu set the case down for hearing at a day named. There was no order made upon defendants' solicitor, nor suggestion as to notice upon plaintiffs and their solicitors; hence, the allegations in the bill of review now before the court, so far as they are based on the conduct of the defendants' solicitor in that respect, are entirely groundless; demurrer, they must be taken as true. The court, de yet, on siring to pursue its business in an orderly manner and with proper dispatch, did, according to its practice, call the equity docket, and take such action with regard to each case called as Irwin v. Meyrose. the circumstances required. The original case, having been set down for hearing, was not reached in due course for some days thereafter. No one appeared for plaintiffs, but defendants were duly represented. The court examined the pleadings, exhibits and proofs, and ordered a decree for defendants. Whatever was done was not through lack of courtesy or otherwise on the part of defendants' solicitor, but on the positive requirement of the court that the case should proceed. This action of the court was based on the necessity of its business, viz.: that some one should respond to the call of the case. The defendants responded, and the court proceeded accordingly, the time for taking testimony having expired, and no extension asked. * * A bill of review has been filed to which a demurrer is interposed. In the case of Whiting v. Bank of the United States, 13 Pet. 6, it is said: “As the original decree, which it seeks to review, was properly, according to our course of practice, to be deemed recorded and enrolled as of the term in which the final decree was passed, it is certainly a bill of review in contradistinction to an original bill in the nature of a bill of review; which latter bill brings forward the interests affected by the decree, other than those which are founded in privity of representation. * It has also been suggested at the bar, that no bill lies for errors of law, except where such errors are apparent on the face of the decree of the court. That is true in the sense in which the language is used in the English practice. In England the decree always recites the substance of the bill, answer and pleadings, and also the facts on which the court founds its decree. But in America, the decree does not ordinarily recite either the bill or answer or pleadings, and generally not the facts on which the decree is founded. But with us the bill, answer and other pleadings, together with the decree, constitute what is properly considered as the record. And, therefore, in truth, the rule in each country is precisely the same in legal effect, although expressed in different language, namely, that the bill of review must be |