That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for new trial, based upon that ground, was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. Railroad Co. v. Fraloff, 100 U.S. 31.
We also remark, before entering upon the consideration of the matters properly presented for determination, that it is unnecessary to express any opinion upon the question whether the plaintiff and McHenry were fellow-servants, within the meaning of the general rule that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. The plaintiff took no exception to the instructions, which proceeded upon the ground that plaintiff and McHenry were fellow-servants, and that in accepting employment from the company they risked the negligence of each other in the discharge of their respective duties. As no such question can arise upon the present writ of error, we pass to the examination, as well of the instructions to which the defendant excepted, as of those asked by it which the court refused to give.
At and before the time of the accident the plaintiff was a brakeman in the service of the defendant. When injured he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, one of defendant's telegraphic night-operators, who was assigned to duty at a station on the line of its road. He was asleep when one of the trains passed his station, and ignorant, for that reason, that it had passed, he misled the train dispatcher at Fort Wayne as to its locality at a particular hour of the night. In consequence of the erroneous information thus conveyed to the train dispatcher, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured.
The court charged the jury, in substance,--
That the position of a telegraphic night-operator upon the line of a railroad was one of great responsibility, the lives of passengers and employes on trains depending upon his skill and fidelity; that the company 'was bound to exercise proper and great care to get a person in all respects fit for the place;' that while the defendant did not guaranty to its servants the skill and faithfulness of their fellow-servants, its duty was 'to use all proper diligence in the selection and employment of a night-operator,' and to discharge him, after being employed, if it learned or had reason to believe he was incompetent or negligent; that the plaintiff had a right to suppose that the company 'would use proper diligence in the selection of its telegraphic operators and all other employes whose incapacity or negligence might expose him to dangers, in addition to those which were naturally incident to his employment;' that 'what will amount to proper diligence on the part of the master in the selection of a servant for a particular duty will in part depend on the character and responsibility of that duty;' that 'the same degree of diligence which is required in the employment of a locomotive engineer would not be required in the employment of a fireman;' that 'sound sense and public policy require that railroad companies should not be exempt from liability to their employes for injuries resulting from the incompetency or negligence of co-employes, when, by the exercise of proper diligence, such injuires might be avoided;' that the presumption is that the defendant 'exercised proper diligence in the employment of McHenry, and the burden of proof of showing the contrary is upon the plaintiff;' but 'if from any cause McHenry was not a fit person to be intrusted with the responsible duties of night-operator, and the defendant knew that fact, or by reasonable diligence might have known it, it is liable, for it is admitted that the plaintiff's injuries were the direct result of McHenry's negligence, and there is no proof that the plaintiff contributed to the accident by his own negligence.
To each of these instructions the defendant excepted at the time, and in proper form.
Among those asked by the company, and for the refusal to give which error is assigned, is one which presents the distinction between the propositions of law presented to the jury for its guidance, and those which the railroad company requested to be given. It is as follows: