wheel of about two tons in weight; and while plaintiff was so engaged, and, necessarily and in the pursuit of his legitimate business, was standing immediately without or partially in or about the doorway or entrance, and after the said plaintiff had commenced to assist, as aforesaid, in moving or rolling in the said wheel, the said defendants, notwithstanding that they were cautioned against the danger of so doing while plaintiff was so engaged as aforesaid, began to hoist certain plank or pieces of timber, by means of a hoistway, with machinery for that purpose, into the upper part of the said building abovementioned, and persisted in doing so, notwithstanding that they were requested by plaintiff and others to desist therefrom until the said wheel should be rolled into the said building, and the men so employed thereon out of the way; that the said plaintiff could not then leave the said wheel and doorway without thereby greatly endangering the lives and persons of one or more of those who were so engaged with him in getting in the said wheel as aforesaid; that the said hoistway and machinery were situated immediately over the said doorway or entrance into the said building; that the said plank or timbers were so negligently and carelessly slung, or prepared for hoisting, and handled and hoisted by the said defendants, that through their mere and gross negligence, inattention and want of proper care and management, the same slipped from the sling or hoisting apparatus by which they were suspended and partially hoisted, and, notwithstanding the utmost exertions and care of plaintiff to avoid the same, and without any negligence or want of proper care and attention on his part, the said plank or timbers, some or one or all of them, fell upon and crushed the leg of the said plaintiff, so that he was thereafter compelled to have it amputated in consequence thereof; and by means thereof the said

plaintiff then and there became and was greatly hurt, and suffered great pain of body from thence until the present time, during all which time the said plaintiff has been hindered and prevented from performing and transacting his lawful affairs and business as theretofore, and in consequence of said injury has since been put to great expense and charges, in the whole amounting to about the sum of $400, in endeavoring to be healed of the said wounds and sickness, so occasioned as aforesaid, and in paying his board and other necessary expenses attendant upon and growing out of his said illness and injury, and in procuring an artificial leg, in lieu of his said leg so amputated as aforesaid, and hath been and is, by means of the premises, otherwise greatly injured; and will, as he is advised and verily believes, be incapacitated, by means of said injury, during the term of his natural life, from pursuing his usual and necessary business and affairs.

And therefore he demands judgment against the said defendants for the said sum of ten thousand dollars, together with the costs of this action.

THOMAS S. SOMMERS,

Plaintiff's Attorney.

(No. 64.)

By a husband and wife for injury to the wife, by reason of the negligence and mismanagement of the defendant, a railroad company.1

SUPERIOR COURT-CITY OF NEW-YORK.

Harvey O. Weed and Helen L. his wife

agt.

The Panama Railroad Company.

Harvey O. Weed and Helen L. Weed his wife complain of the Panama Railroad Company, defendants, and show to this court:

That the defendants are a corporation, incorporated under the laws of the State of New-York, and are the proprietors of a railroad extending from Aspinwall to a point westerly of Obispo, in the Isthmus of Panama, in the State of New Grenada.

That the said railroad is employed by the said defendants for the conveyance of passengers for hire, by means of cars and locomotive engines running thereon.

That on or about the 15th day of August, A. D. 1854, these plaintiffs, together with a large number of persons, in all about four hundred in number, took passage by the said railroad at a point westerly from Obispo, aforesaid, to Aspinwall.

That the said plaintiffs had duly paid their passage money or fare demanded by the said defendants, in consideration of which passage money or fare, so paid the said defendants, it thereby became their duty to convey

1 This case is reported 5 Duer, p. 193.

said plaintiffs to Aspinwall, as aforesaid, with due and reasonable speed and dispatch, and to furnish them with such seats and other conveniences as might be necessary for their comfort.1

These plaintiffs further say, that the said defendants did not convey them to Aspinwall in manner as they were bound by their duty as common carriers to do, but, on the contrary, wrongfully and negligently caused the said plaintiffs to be delayed on their said journey, and to be subject to great discomfort and inconvenience.

That under pretence of conveying these plaintiffs on their way to Aspinwall, as aforesaid, the said defendants, by their agents and servants acting under their directions, wholly neglecting the comfort, convenience and safety of these plaintiffs, and of the large number of persons who, with them, were passengers by said railroad, as aforesaid, did cause the cars, wherein these plaintiffs and said other passengers were seated, to be conveyed and drawn to a certain place between Obispo and Aspinwall, and there suffered and compelled the said plaintiffs, together with said other passengers, to remain during one entire night.

That the place to which the said defendants caused the said plaintiffs to be conveyed, as aforesaid, was a low, wet, swampy place, in the midst of a forest, remote many miles from any habitation, and without any building or convenience for the protection or comfort of persons thereat.

That the atmosphere at said place is exceedingly unwholesome, so much so as to produce disease, when persons are exposed during several hours to such atmosphere.

1 This allegation of "duty," &c., is superfluous. (See ante, p. 193, and note.)

M

That during the time these plaintiffs were left at said last mentioned place, it rained continually, and the ground, being wet by such rain, caused a deleterious miasma to arise, which filled the atmosphere, endangering the health of those compelled to breathe it.

That the said defendants, and their agents and servants, having the charge of the conveyance of these plaintiffs, as aforesaid, well knew the nature of the place to which they conveyed the said plaintiffs, as aforesaid, and that the same was unfit for the continued delay of these plaintiffs and said other passengers at any time, and especially during the night time.

That notwithstanding such knowledge, and without any reasonable or justifiable ground for so doing, the said agents and servants of the said defendants, acting under the direction of the said defendants, after having caused the train of cars in which said plaintiff's were, at the time aforesaid, to be drawn to said last mentioned place, detached from said train the locomotive by which said train had been drawn, and ran back with the same, taking with them the lights which had been placed in said train for the convenience of the passengers, to a place called Obispo, from which the said train had departed a short time previous, leaving the said cars standing upon the said road in the midst of said forest, with about four hundred passengers, including these plaintiffs.

That these plaintiffs, and the said other passengers, were compelled to sit or stand in the cars during the whole of said night, without food or water.

That by reason thereof, the said plaintiff, Helen L., the wife of the said plaintiff, Harvey O. Weed, suffered greatly in her body and mind, and then and there became sick in body, owing to the unwholesomeness of said place, and suffered great pain, so much so that her life was despaired of for several days.