Page:Federal Reporter, 1st Series, Volume 10.djvu/728

 716 FEDERAL SEPOBTEB, �of that, either wlien it employed tliem, or at some time before the happening of this injury to the plaintiff. If there is no proof beforo you that the railroad company had any such notice ; if at the time of employing these persons they had no reason to believe that they were incompetent, — then the plaintiii cannot recover upon the ground that these parties complained of were known to be incompetent and unfit perEons. �The dame rule substantially applies to the question of the suffi- ciency of the machinery. The railroad company agrees, when they employ a man to work for them, that they will furnish him with rea- sonably safe and convenient implements and machinery with which to perform his duties. If theyfail in this, and the employe isinjured on that account, and without fault of his own, they are liable. As I have said before, the only question here with regard to the machinery is whether the absence of the link from the tender is such a defect in the machinery as the plaintiff had no reason to apprehend ; whether it was an unusual thing, and in consequence of it the plaintiff was subjected to extraordinary dangers and perils. If you find that it was not unusual to have the links left off the tender, then the plain- tiff, of course, was bound to be advised of that fact, and cannot re- cover upon that ground. But if you find that it was the duty of the railroad company always to have the link on the tender, and that the failure to do that was to leave the machinery in an unusually dan- gerous condition, the fact would gjve the plaintiff the right to re- cover. �At the request of the defendant's counsel I instruct you to find epecially upon the following questions : �(1) Was the assistant yard-master a competent person for that position ■\ 'hen employed and put to work by the defendant as such assistant yard-mas- ter ¥ (2) At the time of the injury in question was the assistant yard-mas- ter an unsuitable and incompetent person for that position, to the knowledge of the defendant? (3) When employed and put in charge of the engine in question, was the engineer, Mr. Dean, a competent person for that position ? (4) At the time of the injury in question was the engineer in charge of the engine in question an incompetent and unsuitable person for that position, to the knowledge of the defendant ? �If you find for the plaintiff, you will come to the question of dam- ages. This is a question very largely in your discretion, limited only bj' the duty which devolves upon you not to find excessive or unrea- Bonable damages. You will, if you come to this question, have to consider the nature and extent and permanency of the plaintiff 's ir- ��� �