Diaz v. Fajardo Development Co.

thereafter and brought to account for it, he probably excused himself in the way he has here testified, when, probably as matter of fact, the accident did not occur that way at all; but, having made the statement then, the engineer now has to stick to it, or admit it was false.

It is hard, on this sort of evidence, for the court to find exactly how this accident took place. It is settled law that the court, even when sitting as a jury to decide questions of fact, need not find the fact in accordance with uncontradicted testimony, if that testimony is by an interested witness, or is improbable or unreasonable. Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 Sup. Ct. Rep. 733, 851. This engineer is still in the employ of the defendant, but it may be that he does not like to confess that his forgetfulness or negligence resulted in the loss of an arm to this poor boy, the plaintiff. On the one hand, it looks unreasonable, if the conductor of the train was off in the shrubbery and the fireman was not at his post in the cab, that the engineer would want to start this train and go back to the place where they were to leave it at the quitting hour, which was fast approaching. And on the other hand, it is highly improbable that this locomotive, with the brakes set and the lever on the dead line, even though steam escaped into the cylinder, should start in this way.

The court believes that the real fact of the case is that this engineer never left the cab, but stayed there, and, after the fireman went beneath the engine to clean it, negligently forgot that he was there, and assuming that the conductor and the fireman were on the train somewhere, proceeded to start, and that, in his excitement because of the instant screaming of the man being injured, and the other workmen who were looking on, ran it a foot or so, as he said, forward and backward, catching the plaintiff's arm in the way stated, as the latter was

Diaz v. Fajardo Development Co.

frantically trying to crawl out from under the engine to save his life.

The court saw all the witnesses, and heard them testify; and, as the average citizen in these modern times knows more. or less about the caution that it is necessary for the owners of railways and of the dangerous machinery connected therewith, to exercise, in the employment of the help and in the selection and maintenance of the machinery, it is constrained to state that it does not think this defendant exercised proper care or caution in and about the conduct of its railroad. It is doubtful if it was good or cautious management to employ such an inexperienced boy as this plaintiff, at all on this locomotive; and it is doubtful if this engineer is a man such as ought to be intrusted with the management of such a dangerous piece of machinery. But, in any event, it is apparent to the court that the proximate cause of the injury was the careless act of the engineer in starting the locomotive while this man was under it. The plaintiff is not, in the opinion of the court, guilty of such contributory negligence in cleaning the ash box at the place indicated, as would prevent him from recovery on the ground of contributory negligence. He had no knowledge of the defect in the engine, if there was one; and the defendant could, notwithstanding the negligence of the plaintiff, if he was guilty of any, have prevented the accident, if it occurred because of the defect. Vargas v. American R. Co. 1 Porto Rico Fed. Rep. 292; Bosakowski v. American R. Co. 1 Porto Rico Fed. Rep. 277. A workman, of course, assumes the ordinary risks of his employment, but not against defects known to defendant, of which he had no knowledge, in appliances furnished him to do the work; the employer must furnish appliances that are reasonably safe. Ibid.

Even though it may have been dangerous to clean this fire

Diaz v. Fajardo Development Co.

box where he did, which is not admitted in the full sense, still it could have been done there without injury to him, were it not for the gross carelessness of the engineer, whichever way it occurred. And, as a matter of fact, if the engineer tells the truth, and this machine started after being stopped, because of a defect in the valve, the defendant is liable, because such a defect was certainly a patent defect to the defendant, while not patent to this workman; and therefore he took no additional risk on that account. One injured by doing an act in attempting to escape from a dangerous position can recover against a person who put him there or caused him to go there. García y Dávila v. American R. Co. 1 Porto Rico Fed. Rep. 81. Plaintiff would have been killed if he remained under the engine, as he thought, and he certainly would if it had not been stopped. So, in either case, the ruling of the court cannot be affected.

The question then arises whether, in Porto Rico, under the law, an employer is liable to a servant for the pure negligence of a fellow servant. The general rule in the several states of the United States is that the employer would not be so liable. In suits at law this court, like any United States court in the States, is bound to follow the local statutes, and the interpretation put upon them by the local courts, in so far as they may be constitutional, and we are bound here "to adapt ourselves, in cases other than of equity and admiralty, to the local procedure and practice of Porto Rico." Perez v. Fernandez, 202 U. S. 80, 50 L. ed. 942, 26 Sup. Ct. Rep. 561.

It is contended that under §§ 1803 and 1804 of the Civil Code of Porto Rico, which is an old law re-enacted, this plaintiff can recover; and, if this is so, the damages can be as high as the amount sued for, as it has been held that nine or ten thousand dollars for the loss of an arm by a brakeman or

II. PORTO RICO.-11.

Diaz v. Fajardo Development Co.

fireman on a railroad is not excessive. Baltzer v. Chicago, M. & N. R. Co. 89 Wis. 257, 60 N. W. 716; Watson, Damages for Personal Injuries, § 371.

Those sections of the local law provide: "That a person who, by act or omission, causes damage to another, when there is fault or negligence, shall be obliged to repair the damage so done." and that: "Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties."

We do not think that these sections of the Code now apply to this sort of an action, but there is a law we think does apply. Counsel for defendant have submitted for our inspection a typewritten copy of a decision rendered on June 19, 1905, in the supreme court of Porto Rico, in cause No. 54, Claudio v. Cortinez. In that case the court states that: "The action is based on the provisions of the act of March 1, 1902, which is found in Revised Statutes of Porto Rico, pp. 150 to 156, inclusive."

It does not appear whether that court intended to hold that it was simply optional with the plaintiff to bring his action under the act of March 1, 1902, instead of under §§ 1803, 1804, before referred to. However, an examination of the former act will show that it is a complete employers' liability act in itself, and somewhat elaborate in its provisions, and that it radically changes several common-law rules on the question of liability of masters to servants for personal injuries. Among other things, it limits the recovery to the sum of $2,000. Being the later voice of the legislature, in so far as may be necessary for this particular action, under well-known rules of construction, we are bound to hold that it is an exclusive remedy, and that there is no power in the court to grant a

Diaz v. Fajardo Development Co.

judgment to plaintiff here for more than the amount thus limited. We do not think that this view in any manner conflicts with the law as decided by the circuit court of appeals of the eighth circuit in its exhaustive opinion in Denver & R. G. R. Co. v. Norgate, 6 L.R.A.(N.S.) 981, 72 C. C. A. 365, 141 Fed. 247, which went up from Colorado. We are brought to this view, because of the difference between the Colorado statute and that of Porto Rico. In proof of the intention of the legislature of Porto Rico to make this act exclusive under the facts aforesaid, it will be noticed that the words in the opening line, “after the passage of this act," give it peculiar significance. The material portion of the law in question is now known as § 322, Civil Code of Porto Rico, and is as follows: “Section 1 (322). That where, after the passage of this act, personal injury is caused to an employee who is himself in the exercise of due care and diligence at. the time: (1) By reason of any defect in the condition of the ways, works, or machinery, connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition; or (2) by reason of the negligence of any person in the service of the employer intrusted with the exercising of superintendence whose sole or principal duty is that of superintendence; or (3) by reason of the negligence of any person in the service of the employer who has charge of, or physically controls, any signal switch, locomotive engine, car, or train in motion.

"Section 2 (323). That when an employee receives a personal injury under any of the conditions enumerated in § 1 (322) hereof, he may bring an action against his employer