This suit was instituted under the act of congress approved February 17, 1889 (23 Stat. 307, c. 126) providing: 'Section 1. That whenever, by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is cuch as would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect, or default, causing such death, to the widow and next of kin of such deceased person: provided, that in no case shall the recovery under this act exceed the sum of ten thousand dollars: and provided, further, that no action shall be maintained under this act in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party. Sec. 2. That every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured. Sec. 3. That the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions in force in the said District of Columbia.'
The assignments o error in the brief filed by the plaintiff in error are seven in number, and cover all the material points in the case. We assume that any exceptions taken at the trial, and no embraced by those assignments, have been abandoned.
1. The first assignment of error is that the court below erred in refusing, at the close of all the evidence, to direct a verdict in favor of the defendant. It need only be said that the case was one peculiarly for the jury, under proper instructions as to the law of case. There was no reasonable or proper inference from the evidence, as matter of law, that would have justified the withdrawal of the case from the jury. Insurance Co. v. Doster, 106 U.S. 30, 32, 1 Sup. Ct. 18; Railroad Co. v. Converse, 139 U.S. 469, 472, 11 Sup. Ct. 569; Railroad Co. v. Cox, 145 U.S. 594, 606, 12 Sup. Ct. 905.
2. The second assignment relates to the granting, on plaintiff's request, of the following instructions:
'The jury are instructed that the employees of a railroad corporation have a right to expect that the corporation will, as far as possible, provide, for their protection in moving its trains, sufficient machinery, in good order and condition, and that it will exercise reasonable care and caution not to use cars in its trains having defective brakes. If, therefore, the jury believe from the testimony that the brake set by the brakeman Teiling was defective at the time of the accident, and that by the exercise of reasonable care and caution the defendant could have known said brake to be defective, then it is liable, and their verdict must be for the plaintiff, provided they believe from the testimony that the accident was caused by reason of said defective brake.
'The jury are instructed that if they believe from the evidence the brakes set by Brakeman Teiling as detailed in the evidence would, if then in good order, have prevented the cars from moving, or at least would have tended to retard such movement so as to have given sufficient time to notify Brown of his danger and to have enabled him to escape, then if the jury believe from the evidence that he brake was not in good order at the time of the accident, and, further, that the defendant by the exercise of reasonable care could have known of its defective condition, their verdict must be for the plaintiff.'
Two objections have been made by counsel in this court to those instructions.
The first one is that the railroad company employed the deceased himself to examine the brake in question, and to repair it if it was not in proper condition; that if the defect was chargeable to the negligence of any one it was to his negligence; and that the above instructions ignored the question of his contributory negligence.
