Prentice v. Dike.

be found, upon examination, that the facts in the case were widely different from those in the case before us. We are satisfied that such a warranty cannot be implied, either by the court or jury, merely from the facts that the purpose for which the goods were bought was known to the seller, and that he said at the time that, in his opinion, they were suitable for the purpose intended; still less can the warranty be implied, when an express warranty is proved to have been given, limited by its terms to a distinct and independent fact. We think that such an express warranty excludes the supposition that any larger one was intended than its terms embrace.

Hence, if the plaintiffs, or their agents, in the present case, desired a larger warranty than the terms of the express warranty embraced, they should have required it to be given as a condition of their purchase: they had no right to rely upon a larger warranty as implied.

Nor can we assent to the second proposition, upon which the counsel for the plaintiff's insisted, namely, that the plaintiffs were entitled to recover the loss which they sustained in the sale of the hats containing a mixture of cotton, as consequential damages immediately and necessarily resulting from a breach of the express warranty as proved. These damages were not in any legal sense a necessary consequence of a breach of the terms of the warranty, they resulted solely from the use of the goods in the manufacture of hats, but this was a use to which the plaintiffs were under no necessity of applying the goods; they were at perfect liberty to apply them to a different purpose, or to sell them in their actual state. It is true that the damages which the plaintiffs claimed necessarily resulted from the unfitness of the goods for the purpose for which they were bought, but we have already shown that there was no warranty on the part of the defendants that the goods should be fit for the purpose intended. To hold that the defendants were liable for the damages claimed, would be to contradict ourselves by saying either that the terms of the express warranty embraced the fitness of the goods, or that there was an implied warranty of the same purport. Satisfied that there was no such warranty, express or implied, we cannot hold the defendants liable for damages resulting from its alleged breach. In truth, the second proposition of the learned counsel, although different in words, was

Smith v. N. Y. and Harlem R. R. Co.

in substance the same as his first. It asserted in a different form the existence of an implied warranty.

It follows, from these observations, that the true and only rule of damages applicable to the case was exactly that which the Judge upon the trial instructed the jury to follow, and as there was no error in his charge there was certainly none in his exclu. sion of the evidence that had been offered to prove that the plaintiffs had in fact sustained the whole loss which they claimed as damages to recover; this evidence, if there was no error in the charge, was properly excluded as irrelevant, since it had no bearing upon any question that the jury could have been required to determine.

As none of the exceptions taken on the trial can be allowed, the order denying a new trial must be affirmed, and the appeal be dismissed, with costs.

SARAH S. SMITH, administratrix, etc., of TIMOTHY S. SMITH v. NEW YORK AND HARLEM R. R. Co.

The deceased was an engineer in the employ of the New Haven R. R. Co., and was killed by the accident of the cars which he was running being thrown off the track of the road; the action was brought by his widow, as his administratrix, for the recovery of damages, under the statute, and was founded on the allegations that the accident was caused, partly by the negligence of a switch-tender in the employ of the defendants, and partly by the insufficiency of the switch itself. Both these questions of fact were submitted to the jury, and were found by them in favor of the plaintiff,

The Judge, upon the trial, charged the jury that, although the deceased was in the employ of the New York and New Haven R. R. Co., yet if he was running their train upon the defendant's railroad, and by reason of the negligence of the switchtender employed by the defendants, that train was thrown from the track, and his death thus caused without any negligence on his part concurring to produce the accident, the defendants were responsible in the action.

To this portion of the charge the counsel for the defendants excepted. The Judge also charged the jury, that if there was on the part of the defendants a want of reasonable skill and prudence in the construction of their road at the place of the accident, or a neglect on their part to adopt a useful improvement in the construction of the switch, by which the danger of the accident would have been materially reduced, and which improvement was known to the defendants, and they had it in their power to apply it, the defendants were liable

Smith v. N. Y. and Harlem R. R. Co.

if their omission to adopt the improvement caused the accident, unless there was negligence on the part of the deceased that concurred to produce the result. To this part of the charge the counsel for the defendants also excepted. Held, that the exceptions were not well taken, the charge of the Judge being, in point of law, entirely correct, and being directly applicable to the questions of fact raised by the evidence.

Held, further, that the finding of the jury upon the questions of fact, specially submitted to them, was fully sustained by the evidence.

Judgment for plaintiff affirmed, and new trial denied, with costs,

(Before DUER, SLOSSON and WOODRUFF, J.J.)

Heard, November; decided, December, 1856.

APPEAL from a judgment in favor of the plaintiff, and from an order denying a new trial.

The cause was before the court upon a case containing the proceedings and exceptions on the trial, all of which, together with the issues raised by the pleadings, are fully stated in the opinion of the court.

C. W. Sandford, for the defendants, appellants, moved for a reversal of the judgment. He cited 6 English R. R. cases, 580.

E. Seely, for the plaintiff, contra, cited Coon v. Syracuse and Utica R. R. Co., (1 Seld., 492, and 33 Eng. L. & Eq. R., 1; 4 Metcalf, 49.)

BY THE COURT. SLOSSON, J.-The action is brought by the widow, as administratrix of Timothy St. John Smith, an engineer in the employ of the New York and New Haven R. R. Co., to recover, under the statute, damages to the widow and two infant children, occasioned by his death, in consequence of the alleged negligence of the defendants in not providing a proper switch at a point of their road at the Melrose station, in Westchester county, between New York city and Williams' Bridge, the road between which points was used by the New Haven Co. for the running of their cars with the consent of the defendants, and for a compensation paid by the latter company to the defendants; and the plaintiff alleges, that on the 9th of October, 1854, a locomotive with passenger train, under the management and guidance of the deceased, as engineer as aforesaid, was thrown from the track at Melrose aforesaid, and the said Smith was killed; the cause of the catastrophe being that the defendants "carelessly, negligently, and

Smith v. N. Y. and Harlem R. R. Co.

improperly suffered and permitted a switch of an insufficient, unfit, and improper character and construction to be used at that place, and by their negligence, unskilfulness, want of care, etc., through their servants in that behalf, so carelessly, negligently, and wrongfully placed and turned the said switch, and left the same so carelessly, etc., turned, and made their signal of safety so carelessly," etc., that the train was thrown from the track, and the engineer killed.

The defendants deny the unfitness of the switch, and allege that the engine was thrown from the track "in consequence of the accidental misplacement of a switch by a switchman employed by the defendants, and the carelessness and negligence of the deceased," but they aver, "that the said switchman was a suitable and proper person to be employed by the defendants, and had always maintained, until the accident, the reputation of a sober, honest, and capable person for such an employment." And they further allege, that the deceased entered upon and continued in his said employment "with full knowledge of the construction of the road, and the mode and manner in which the switches and turn-outs upon the road were conducted and managed, and that he took the risk of his employment, and of the character and capacity of the various persons employed thereon," and they deny negligence on their part,

The evidence as to the good character and qualifications of Lawless, the switch-tender, was uncontradicted.

The switch was out of place; in respect to this there is no dispute. As the train approached, the white flag, signal of safety, was held out by the switch-tender, and one witness says he saw it a quarter of a mile off. The witnesses differ as to the rate of speed at which the train was moving, varying in their estimates from twelve to eighteen and twenty miles an hour.

The men employed on the road between the city and Williams' Bridge, are all employed by the defendants, the Harlem Company. There were six switches at this station, three long and three short. The question as to the sufficiency of the switch in question, which was a short switch, turns on the point, whether it is or not inferior to what is called the "frog and guard rail." On this subject the evidence on the part of the plaintiff is very conclusive.

Smith v. N. Y. and Harlem R. R. Co.

Schuyler, a railroad engineer, swears that the frog and guard rail require no switchman, and that the shut switch is not now used to his knowledge, in consequence of the superiority of the frog and guard, though he does not mean to say they are not used on any road, as he has seen them in various places.

He says the frog and guard rail is superior to the shut switch, and is uniformly deemed better by engineers, but he says there is no difficulty in the shut switch, if it is in its proper place.

Sanborn, the conductor, who had been five years on railroads, swears that shut switches are not as safe as frog and guard rails; the weight of the engine is calculated to displace a shut switch. He says that if this had been a frog and guard rail they would have gone safe. He says that the shut switch is not used on the Erie road, and the Eastern roads, but the frog and guard.

Mather, a civil engineer, says the best method of construction is to use the frog and guard rail, and it is always used now; and he says the advantage it has is this, it is a fixture, and always right, whereas the shut switch is movable and liable to be out of place. The frog and guard, he says, are altogether safer than the switch, and the latter is not now used on any railroad that he knows of except one in South Carolina. Most railroads, he says, have changed from the shut switch to the frog and guard rail. "The frog and guard rail are now universally used as far as I know."

One witness swears that the switches at that station were in a very bad condition, while the witnesses for the defence swear that they were all in good condition.

On the part of the defence, one witness swears that if he was riding over the road, and was sure it was in its place, he would prefer the shut switch. Another swears this was as good a switch as any of its kind could be.

One witness swears that he should not think the frog and guard rail were used because they are safe; he says that in the course of time they are cheaper, because the shut switch requires a man to be in constant attendance. It thus appears that the difference between the two is, that the frog and guard rail is always in its place, and requires no switch-man to attend it, while the shut switch absolutely requires the attendance of a switch-man in order to safety.