78 [68 U. S., XVII., 547]; Murray v. Clayton, | juries sustained by the plaintiff, the defendant L R., 10 Ch., 675, note; Clark v. Adie, L.R., 10 in error here, from a collision between two Ch., 667, 675, 676, and 2 App. Cas., 315. freight trains belonging to the Wabash Railway The new claim in the re-issue being invalid, Company, a Corporation engaged in the busiand the defendants not having infringed the en-ness of carrying freight and passengers for hire. tire combination set forth in the repetition of the The collision took place on the night of August old claim, the decree below can neither be upheld 17, 1877, near Wabash, Indiana. upon the new claim, nor modified so as to apply it to the other claim, but must be reversed and the case remanded, with directions to dismiss the bill. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Cited-114 U. S., 86, 98. The jury returned a verdict in favor of the plaintiff for $15,000. A motion for new trial having been made and overruled, the case has been brought to this court for review. The action proceeded mainly upon the ground that McHenry, a telegraphic operator in the service of the Company, was incompetent for the work in which he was engaged, and that his incapacity to meet the responsibilities of his position could, by reasonable care, have been ascer WABASH RAILWAY COMPANY, Piff. in tained and, in fact, was known to the Company Err., v. JOHN MCDANIELS. (See S. C., 17 Otto, 454-463.) Setting aside verdict for excessive damages-liability of railroad company for incompetent employés, *1. A judgment cannot be reviewed in this court upon the ground that the damages found by the jury are excessive. at, before and during the time of his employ ment. The essential facts bearing upon the question of the Company's negligence in employing McHenry are summarized in one of the paragraphs of the charge to the jury, to which, so far as the facts which the evidence tended to establish are stated, there seems to have been no exception. They are: "The tenth night after McHenry went on duty as night operator he went to sleep at his post of duty with the result already stated. He was seventeen years old but a few weeks before this employment. In June, 1876, he went into the service of the defendant, at Wabash, as a messenger boy, and continued in that service some twelve months, during which time he was. instructed by Waldo, the day operator, in the art of telegraphy. For this instruction Waldo exacted and received, as compensation, McHenry's wages, $10 per month. For a month or more before McHenry's employment as night. operator he worked in the country, harvesting. The only knowledge that he had of telegraphy [No. 286.] was what he acquired under Waldo, and before Argued Apr. 26, 1883. Decided May 7, 1885. taking charge as night operator he had never been employed anywhere or in any capacity as 2. The same degree of care required of a railroad corporation in providing and maintaining machinery for use by its employés must be observed in the appointment and retention of the employés themselves, including telegraphic operators. Ordinary care on the part of such corporation implies, as between it and its employés, not simply the degree of diligence which is customary among those intrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. It is such care as, in view of the consequences that may result from negligence on the part of employés is fairly commensurate with the perils or dangers likely to be encountered. IN ERROR to the Circuit Court of the United operator. He was not competent, as he told, States for the District of Indiana. The history and facts fully appear in the Statement of the case by Mr. Justice Harlan: This was an action to recover damages for in*Head notes by Mr. Justice HARLAN. NOTE.-Negligence; responsibility of master to servant for carefulness and competency of co-servants. The master must exercise such degree of care in selecting servants as a reasonably prudent man would, in view of the hazards incident to the employment of careless or incompetent servants. Kroy V. Chic., etc., R. R. Co., 32 Iowa, 357; Strahlendorf v. Rosenthal, 30 Wis., 674; Rohback v. Pac. R. R. Co., 3 Mo., 187; Farwell v. B. & W. R. R. Corp., 4 Met., 49; 8. C., 38 Am. Dec., 339. The obligation of the master does not extend beyond the use of ordinary care and diligence. Wiggett v. Fox, 36 Eng. L. & E., 486; King v. B. & W. R. R. Co., 9 Cush., 112; Ponton v. R. R. Co., 6 Jones, 245; Caldwell v. Brown, 53 Pa. St., 453; Manville v. Cleveland & T. R. R. Co., 11 Ohio St., 417. It is the duty of the master to exercise reasonable care in the selection of servants. Haskin v. R. R. Co., 5 Barb., 129; Faulkner v. Erie R. R. Co., 49 Barb., 324; Thayer v. St. Louis, etc., R. R. Co., 22 Ind., 26: Chic., etc., R. R. Co. v. Harvey, 28 Ind., 28; Curley v. Harris, 11 Allen, 112; Gilman v. Eastern R. R. Co., 10 Allen, 233; Ill. Cent. R. R. Co. v. Jewell, 46 I, 99; Witle v. Hague, 2 Dow. & Ry., 33. you, to take press reports, but was competent, as he thought, and as Waldo and Wade (the latter his predecessor as night operator) thought, to do ordinary business, and to discharge the duty of night operator at Wabash; his habits were good, and he was bright and industrious. Waldo had recommended McHenry to Simp It is presumed that the master did exercise such care, and the burden of showing that he did not is upon the injured fellow servant. Davis v. R. R. Co., 20 Mich., 105; Brothers v. Carter, 52 Mo., 372; S. C., 14 Am. Rep., 424; Davis v. Detroit, etc., K. R. Co., 20 Mich., 105. Where the injured servant remained in the master's employment with knowledge of his co-servant's incompetency, he cannot recover for injuries resulting therefrom, unless he shows that he had reason to believe he would be discharged or placed where his negligence would not injure complainant. Wiggins Ferry Co. v. Blakeman, 54 Ill., 201; Haskins v. R. R. Co., 65 Barb., 129; Laning v. R. R. Co.,. 49 N. Y., 521; Kroy v. Chic., etc., R. R. Co., 32 Iowa, 357; Frazier v. Pa. R. R. Co., 38 Pa. St., 104; Davis. v. Detroit, etc., R. R. Co., 20 Mich., 105. If the officers of a railway company have made careful inquiry into the habits and competency of the employés and, upon such inquiry, believe them sober, competent and careful, the company is not liable for injuries resulting from the negligence of a co-employé. O'Donnell v. Allegheny Val. R. R. Co., 59 Pa. St., 239; Un. Pac. R. R. Co. v. Milliken, 8 son, the chief train despatcher at Ft. Wayne, | N. Y., 579; Dana v. R. R. Co., 23 Eun, 478. as capable and faithful and, without knowing McHenry personally or even seeing him, and and Gordon & Shepard, for defendant in error: on Waldo's recommendation and what Simpson knew of McHenry's skill from having occasionally noticed at Ft. Wayne his fingering the key at Wabash, Simpson directed Waldo to employ McHenry at $50 a month; or, according to Waldo's testimony, he was directed by Mr. Simpson to put McHenry in charge of the office. McHenry's father told Waldo, before the son entered on the discharge of his duties, that Waldo should have $10 a month of the son's wages if Waldo would continue to give the son attention, to which Waldo assented. This is the father's testimony. Waldo admits that the father made the proposition to him as stated, but says he replied that the son was competent to take charge of the office and run it without assistance. Boys no older than McHenry had successfully discharged the duties of day and night despatcher on this and other roads, and it seems to have been the custom of the Company to educate its telegraph operators while serving as messenger boys. Other railroad companies, it seems from the evidence, have pursued the same course with satisfactory results." Messrs. Wager Swayne, Charles B. Stuart, T. A. Hendricks and Conrad Baker, for plaintiff in error: The court erred in charging the jury that "proper and great care" and not “ordinary care" was the duty owing by a railroad company to its employés in selecting their fellows. Messrs. E. E. McKay, Wm. Stone Abert The diligence required must be in proportion to the danger of the service; and if the master be negligent in making the appointment he is liable to the injured servant. See, R. R. Co. v. Collarn, 73 Ind., 271; R. R. Co. v. Waller, 48 Ala. Rep., 459; Whart. Ev.,sec. 48; Potter v. Faulkner, 31 L. J. Q. B., 30; Gil man v. R. R. Co., 10 Allen, 236; Baulec v. R. R., 59 N. Y., 356; R. R. Co. v. Decker, 82 Pa. St.. 119; Wager v. R. R. Co., 55 Pa. St., 460; O'Con nell v. R. R. Co., 20 Md., 212; Wheelan v. R. R. Co., 8 Ohio St., 249; Thayer v. R.R. Co.,22 Ind., 26; R. R. Co. v. Taft, 28 Mich., 289; Lee v. De troit Iron Works, 62 Mo., 565; Whart. Neg., secs. 48, 785; Ford v. R. R. Co., 110 Mass., 240. The law does not exact a warranty of a coservant's fitness and competency, but it does exact due care and diligence in their selection; and carries these words as far as they may fairly go. Coombs v N. Bedford Co., 102 Mass., 572; Cayzer v. Taylor, 10 Gray, 274; Seaver v. R. R. Co., 14 Gray, 466; Snow v. R. R. Co., 8 Allen, 441; Gilman v. R. R. Co., 10 Allen, 233; Gilman v. R. R. Co., 13 Allen, 433; Ford v. R. R. Co., 110 Mass., 240. Mr. Justice Harlan delivered the opinion of the court: v. Fraloff, 100 U. S., 31 [XXV., 534]. That we are without authority to disturb the judgment, upon the ground that the damages are excessive, cannot be doubted. Whether the Owen v. R. R. Co., I Lans., 108; Muldowney order overruling the motion for new trial based v. lll. R. R. Co., 39 Iowa, 615; Way v. R. R. Co., upon that ground, was erroneous or not, our Iowa, 341; Lumley v. Caswell, 47 Iowa, 159; 40 power is restricted to the determination of quesWilliams v. Clough, 3 Hurl. & N., 258; Crutch-tions of law arising upon the record. R. R. Co. field v. R. R. Co., 78 N. C., 300; Stone v. Oregon Co., 4 Oreg., 52; Senior v. Ward, 102 E. C. L., 384; Beaulieu v. Portland Co., 48 Me., 291; Rohback v. R. R. Co., 43 Mo., 187; Murphy v. R. R. Co., 71 Mo., 202; McDermott v. R. R. Co., 30 Mo., 115; Dillon v. R. Co., 3 Dill., 319; Baulec v. R. R. Co., 59 N. Y., 356; R. Co. v. McCormick, 74 Ind., 440; Gilman v. R. R. Co., 10 Allen, 233; R. R. Co. v. Sentmeyer, 92 Pa., 276; Slater v. Jewett, 85 N. Y., 61; Manville v. R. R. Co., 11 Ohio St., 417. The night operator through whose fault the plaintiff suffered was his fellow-servant. Pierce R. R.; Slater v. Jewett, 85 N. Y., 61; R. Farwell v. R. R. Co., 4 Metc.,49; Robertson v. R. Co., 78 Ind., 77; Chapman v. R. R. Co., 55 Kan., 647; Sizer v. Sy., etc., R. R. Co., 7 Lans., 67; Permission by the company to allow an incompetent fireman to run an engine renders the company liable. Harper v. I. & St. L. R. R. Co., 47 Mo., 567. Specific acts of want of skill known to the officers may be shown. P., Ft. W. & Chic. R. R. Co. v. Ruby, 38 Ind., 294; S. C., 10 Am. Rep., 111; contra: Frazier v. Pa. R. R. Co., 38 Pa. St., 104. Where the duty of selecting servants must be delegated, as in the case of corporations, the master is nevertheless liable to its servants for injuries resulting from a negligent performance of the delegated duty. Mann v. Pres., etc., of D. & H. C. Co., 91 N. Y., 495; S. C., 16 Week. Dig., 483. The master does not guaranty nor warrant the competency or fitness of his servants. I. & Cin. R. R. Co. v. Love, 10 Ind., 554; Moss v. Pac. R. R. Co., 49 Mo., 167; S. C., 8 Am. Rep., 126; C. C. & I. C. Ry. Co. v. Troesch, 68 Ill., 545; S. C., 18 Am. Rep., 578; Beaulieu v. Portland Co., 48 Me., 291; Faulkner v. Erie R. R. Co., 49 Barb., 324; Ormond v. Holland, El. B. & El., 102'; Tarrant v. Webb, 18 C. B., 797. We also remark, before entering upon the consideration of the matters properly presented for determination, that it is unnecessary to express any opinion upon the question whether the plaintiff and McHenry were fellow-servants, within the meaning of the general rule, that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. The plaintiff took no exception to the instructions, which proceeded upon the ground that plaintiff and McHenry were fellow-servants and that, in accepting employment from the Company, they risked the negligence of each other The master need not have actual knowledge of his incompetency to render him liable to a servant for the negligence of an incompetent fellow serv ant. It is sufficient if he would have ascertained it by the use of reasonable care and diligence. Brickner v. N. Y. C., etc., R. R. Co., 2 Lans., 506; Harper v. I. & St. L. R. R. Co., 47 Mo., 567; S. C., 4 Am. Rep.. 353; Byron v. N. Y. State Printing Tel. Co., 2 Barb., 39. Where the employé is so grossly and notoriously unfit for his position that not to know his unfitness is negligence, the law will presume notice, C., R. I. & P. R. R. Co. v. Doyle, 18 Kan., 58. Where the master has used due diligence in the selection of fellow-servants, he is not liable to s servant for the negligence of his fellow servants. Brown v. Maxwell, 6 Hill, 592; S. C., 41 Am. Dec., 771; Farwell v. B. & W. R. R. Co., 4 Met., 49; S. C., 38 Am. Dec., 339: Toledo, W. & W. R. R. Co. v. Durkin, 76 Ill., 397; King v. B. & W. R. R. Co., 9 Cush.. 114; Coon v. Sy. & U. R. R. Co., 5 N. Y., 494; Brand v. T. & S. R. R. Co., 8 Barb., 383. in the discharge of their respective duties. As no such question can arise upon the present writ of error, we pass to the examination, as well of the instructions to which the defendant excepted, as of those asked by it which the court refused to give. At and before the time of the accident, the plaintiff was a brakeman in the service of the defendant. When injured, he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, one of defendant's telegraphic night operators, who was assigned to duty at a station on the line of its road. He was asleep when one of the trains passed his station, and ignorant, for that reason, that it had passed, he misled the train despatcher at Fort Wayne as to its locality, at a particular hour of the night. In consequence of the erroneous information thus conveyed to the train despatcher, the trains were brought into collision, whereby the plaintiff lost his leg and was otherwise seriously and permanently injured. Among those asked by the Company, and for the refusal to give which error is assigned, is one which presents the distinction between the propositions of law presented to the jury for its guidance, and those which the Railroad Company requested to be given. It is as follows: 'Although McHenry may have been and was guilty of negligence, and that negligence may have caused and did cause the collision which resulted in the injury to the plaintiff complained of, still the plaintiff cannot recover in this action unless it appears from the evidence that the defendant was guilty of negligence either in the appointment of said McHenry or in retaining him in his position; and to establish such negligence on the part of the defendant, not only the incompetency of said McHenry must be shown, but it must be shown that defendant failed to exercise ordinary care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of the defendant or to some agent or officer of defendant having power to remove said McHenry." The court charged the jury, in substance, "That the position of a telegraphic night operator upon the line of a railroad was one of great responsibility, the lives of passengers and employés on trains depending upon his skill and fidelity; that the Company 'was bound to exercise proper and great care to get a person in all respects fit for the place;' that while the defendant did not guaranty to its servants the skill and faithfulness of their fellow-servants, its duty was 'to use all proper diligence in the selection and employment of a night operator,' and to discharge him, after being employed, if it learned or had reason to believe he was incompetent or negligent; that the plaintiff had a right to suppose that the Company would use proper diligence in the selection of its telegraphic operators and all other employés whose incapacity or negligence might expose him to dangers, in addition to those which were natually incident to his employment;' that what will amount to proper diligence on the part of the master in the selection of a servant for a particular duty will in part depend on the character and responsibility of that duty;' that the same degree of diligence which is required in the employment of a locomotive engineer would not be required in the employment of a fireman;' that sound sense and public policy require that railroad companies should not be exempt from liability to their employés for injuries resulting from the incompetency or negligence of co-employés, when, by the exercise of proper diligence, such injuries might be avoided; that the presumption is that the defendant exercised proper diligence in the employment of McHenry, and the burden of proof of showing the contrary is upon the plaintiff ;' but, if from any cause McHenry was not a fit person to be entrusted In Hough v. R. Co., 100 U. S., 213 [XXV., with the responsible duties of night operator, 612] it was decided that among the established and the defendant knew that fact, or by rea- exceptions to the general rule as to the nonsonable diligence might have known it, it is liability of the common employer to one emliable, for it is admitted that the plaintiff's in-ployé for the negligence of a co-employé in the juries were the direct result of McHenry's negligence, and there is no proof that the plaintiff contributed to the accident by his own negligence." The court modified this instruction by striking out the word "ordinary" in the only place where it occurred, and inserting in lieu thereof the word "proper." Thus modified the instruction was granted, the defendant excepting, at the time, to the refusal to give the instruction in the form presented. The main contention of the defendant is, that the jury were instructed that the duty of the Company was to observe "proper and great care," when they should have been instructed that only ordinary care was required in the appointment and retention of its employés. The former degree of care, it is contended, is matter of opinion upon a question of law, while the latter is a question of fact. And the argument of counsel is, that the question of ordinary care is to be determined by the usages or custom which obtain in railroad management and, therefore, the proper inquiry is: not what ought to be, but what is, the general practice in that business; that what the servant is presumed to know, and to have accepted as the basis of his employment, is the practice or custom as it is when, in hiring his services, he risks the dangers incident to his employment; that the law presumes that master and servant alike contract with reference to that which is equally within their observation and inquiry; consequently, the Company was required in the selection of plaintiff's fellow-servants, whose negligence might endanger his personal safety, not to observe "proper and great," which counsel insists mean peculiar, care, but only that degree of diligence which the general practice and usage of railroad management sanctioned as sufficient. To each of these instructions the defendant excepted at the time and in proper form. same service, is one which arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master; that the master is bound to observe | reasonable diligence, and reasonable diligence all the care which prudence and the exigencies implies, as between the employer and employé, of the situation require, in providing the serv- such watchfulness, caution and foresight as, unant with machinery or other instrumentalities der all the circumstances of the particular servadequately safe for use by the latter; and that ice, a corporation controlled by careful, prudent it is implied in the contract between the master officers, ought to exercise. and the servant, that in selecting physical means and agencies for the conduct of the business, the master shall not be wanting in proper care. It was further said that the obligation of a railroad company, in providing and maintaining, in suitable condition, machinery and apparatus to be used by its employés, is the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered; and that "its duty in that respect to its employés is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally as in keeping and maintaining them in such condition as to be reasonably and adequate-tween officers of railroad corporations and their ly safe for use by employés." These observations meet, in part, the suggestion made by counsel, that ordinary care in the employment and retention of railroad employés means only that degree of diligence which is customary, or is sanctioned by the general prac tice and usage, which obtains among those intrusted with the management and control of railroad property and railroad employés. To this view we cannot give our assent. There are general expressions in adjudged cases, which apparently sustain the position taken by counsel. But the reasoning upon which those cases are based is not satisfactory, nor, as we think, consistent with that good faith which, at all times, should characterize the intercourse be employés. It should not be presumed that the These observations, as to the degree of care employé sought or accepted service upon the to be exercised by a railroad corporation in pro- implied understanding that they would exercise viding and maintaining machinery for use by less care than that which prudent and humane employés, apply with equal force to the appoint- managers of railroads ought to observe. To ment and retention of the employés themselves. charge a brakeman, when entering the service The discussion in the adjudged cases discloses of a railroad company, with knowledge of the no serious conflict in the courts as to the gener- degree of care generally or usually observed by al rule, but only as to the words to be used in agents of railroad corporations in the selection defining the precise nature and degree of care and retention of telegraphic operators along the to be observed by the employer. The decisions, line traversed by trains of cars, a branch of the with few exceptions, not important to be men- company's service of which he can have little tioned, are to the effect that the corporation knowledge, and with the employés specially enmust exercise ordinary care. But according to gaged therein he can ordinarily have little interthe best considered adjudications, and upon the course, is unwarranted by common experience. clearest grounds of necessity and good faith, or- And to say, as matter of law, that a railroad dinary care, in the selection and retention of corporation discharged its obligation to an emservants and agents, implies that degree of dil-ployé-in respect of the fitness of co-employés igence and precaution which the exigencies of whose negligence has caused him to be injured the particular service reasonably require. It is by exercising, not that degree of care which such care as, in view of the consequences that ought to have been observed, but only such as may result from negligence on the part of em-like corporations are accustomed to observe, ployés, is fairly commensurate with the perils or dangers likely to be encountered. In substance, though not in words, the jury were so instructed in the present case. That the court did not use the word "ordinary" in its charge is of no consequence, since the jury were rightly instructed as to the degree of diligence which the Company was bound to exercise in the employment of telegraphic night operators. The court correctly said that that was a position of great responsibility and, in view of the consequences which might result to employés from the carelessness of telegraphic operators, upon whose reports depended the movement of trains, the defendant was under a duty to exercise "proper and great care❞ to select competent persons for that branch of its service. But that there might be no misapprehension as to what was in law such care, as applicable to this case, the court proceeded, in the same connection, to say that the law presumed the exercise by the Company of proper diligence, and unless it was affirmatively shown that the incapacity of McHenry when employed, or after his employment and before the collision, was known to it, or by reasonable diligence could have been ascertained, the plaintiff was not entitled to recover. Ordinary care, then, and the jury were, in effect, so informed, implies the exercise of would go far towards relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters, may not be due or reasonable or proper care and, therefore, not ordinary care, within the meaning of the law. It is further objected to the charge, that the court below confounded the degree of care owed as a duty to passengers with the degree of care to be observed in the case of employes. This objection necessarily rests upon the assumption that the instruction as to the exercise of "proper and great care" in the selection of telegraphic night operators accurately stated the degree of diligence to be observed as between the Railroad Company and passengers. But clearly the statement in the charge that the lives of both passengers and employés depended upon the skill and fidelity of telegraphic operators, employed by the Corporation in connection with the move ment of its trains, was not for the purpose of in dicating, with legal precision, the degree of care | OMAHA HOTEL COMPANY, SMITH S. CALDWELL ET AL., Plffs. in Err., v. AUGUSTUS KOUNTZE ET AL. AUGUSTUS KOUNTZE, THOMAS WARD- v. OMAHA HOTEL COMPANY, SMITH S. (See S. C., "Kountze v. Omaha Hotel Company," 17 upon which passengers could rely in all matters affecting their safety. They, at least, have the right to expect the highest or utmost, not simply a great degree of diligence on the part of passenger carriers and all persons employed by them. The reference, therefore, to passengers, in the instructions alluded to, was not calculated to make the impression that employés could count upon the same degree of care that is required by law towards passengers. Whether in the selection and retention of telegraphic operators, upon whose capacity and watchfulness largely depends the personal safety of employés on trains, a corporation should or not exercise the same degree of care which must be observed in the case of passengers, it is not necessary now to consider or determine. It is sufficient to say that the corporation was bound, in the appointment and retention of such operators, to ob- Appeal bond, effect of additional conditionserve, as between it and its employés, at least the degree of care indicated in the charge to thejury. Among the instructions asked in behalf of the Company, the refusal to give which is the basis of one of the assignments of error, is the following: "To render the carelessness of said McHenry the carelessness of the defendant, or to render the defendant liable for the same, it is incumbent on the plaintiff to prove that said McHenry was appointed to or retained in his position as telegraph operator with knowledge on the part of the Company, or some officer or agent of the Company having the power of appointment or removal, that he was incompetent, or that such knowledge might have been obtained by the use of reasonable diligence on the part of the defendant, or of such officer or agent of the defendant." It is now complained that the refusal to give this instruction was practically a declaration to the jury that the Company was responsible for knowledge which it had through any of its agents or through its agents generally; whereas, it was liable only for the negligence or omission of those of its agents who were charged with the duty of selecting and controlling its employés and its general business. It is sufficient to say that this point, assuming the instruction in question to be correct, was covered by the last clause of the instruction to which our attention was first directed, and in terms quite as favorable to defendant as it was entitled to under the law. The court, in that instruction, expressly said that to establish the alleged negligence, not only the incompetency must be shown, "but it must be shown that the defendant failed to exercise proper care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of defendant or to some agent or officer of defendant having power to remove said McHenry." It is not necessary to further extend the discussion of the questions pressed upon our consideration. We are of opinion that the case, in all of its aspects, was fairly placed before the jury in the instructions given by the court. No substantial error of law was committed to the prejudice of the Company and the judgment must be affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. Cited 109 U. S., 385, 483. when ineffectual. suit in the courts of the United States, does not op*1. An appeal bond in an ordinary foreclosure erate as security for the amount of the original decree; nor for the interest accruing thereon pending the appeal; nor for the balance due after applying the rents and profits, or use and detention of the the proceeds of the mortgaged premises; nor for property pending the appeal; but only for the costs of the appeal; and the deterioration or waste of the non-payment of taxes, and loss by fire if not propproperty, and perhaps burdens accruing upon it by erly insured. It is very doubtful, whether mere depreciation in market value is any cause of recovery on the bond. 2. Where an appeal bond, instead of following the Argued Apr. 12, 13, 1883. Decided May 7, 1883. ERROR to the Circuit Court of the United States for the District of Nebraska. The history and facts of the case appear in the opinion of the court. Mr. J. M. Woolworth, for Kountze et al., plaintiffs below: This undertaking possesses all the elements of a valid and binding contract: 1. The parties were competent to contract. 2. The obligors entered into the contract voluntarily. U. S. v. Tingey, 5 Pet., 115; U. S. v. Bradley, 10 Pet., 343; U. S. v. Linn, 15 Pet., 290; U.S. v. Hodson, 10 Wall., 395 (77 U. S., XIX., 937). The undertaking of the defendants was supported by a good consideration, namely: that the plaintiffs in the decree would forbear exe cution of the decree. U. S. v. Linn, 15 Pet., 290, 314; Montville v. Haughton, 7 Conn., 543, 549; Giddings v. Barney, 31 Ohio St., 80; Rynearson v. Fredenburg, 42 Mich., 412; State v. Cannon, 34 Iowa, 322. The contract contravened no provision of law. U. S. v. Tingey, 5 Pet., 114; U. S. v. Brad*Head notes by Mr. Justice BRADLEY. |