On the established principles of trial by jury the verdict, was warranted by the evidence both as to liability for the injury and amount of the damages. Judgment affirmed.
The evidence for the defendant tended to show that, on the afternoon of the injury, its hostler engineer had brought down the accommodation train and engine, together with another engine, to near the union depot, and had taken the other engine and put it on another track; that there was a flagman or train-hand connected with the accommodation train, who was on the train at the time it was backed down as above stated, and who was loft on the train by the engineer; that this flagman, without authority, backed the accommodation.train under the depot, started with the engine of the accommodation train across the crossing which ran 'by the depot, revei’sed the engine, ran it back under the depot and struck the cars, breaking down the platform of the baggage-car, and breaking the tank on the tender attached to the engine. The hostler had never seen this flagman try to run an engine before; he was not on the engine the hostler was running, nor was he on the engine of the accommodation train until after the hostler had moved ofi with the engine he (the hostlei’) was on. While plaintiff' was waiting in the depot to take the other train, his father stated to a witness that the boy complained of his leg, that was all; hurt his leg some way and got a pretty good shaking, or something like that. A physician testified that in May, 1887, he was called to treat plaintiff; understood that he had the measles and a cough, and that there was a difficulty about his breathing, swelling in his left side. He examined the boy and found the swelling in his left side just above the stomach, and thinks that swelling was caused by an effusion of. serum inside the pleura cavity. The hoy looked very delicate then, and looks better now. A few days after the accident, he saw the hoy crossing the road in front of his grandfather’s residence, with a basket, going to the orchard. A few days after that, he was called in to see the boy who had a relapse; his cough and cold and difficulty of breathing seemed to be worse; and the opinion of witness then and at the time of the trial was, that this relapse had not been caused by a fresh injury but was a continuation of that old trouble, or rather a relapse. When he was called in, he examined the boy again and found no evidence of any physical injury of any kind, except from the disease. He examined his chest and lungs, and there were no bruises or any discoloration to show that he had been struck anywhere. This was about a week before the boy got so had ofi. ITe did n'ot complain about the collision to witness, or about being hurt, though his father said he was hurt. Witness was treating him for a continuation of his old trouble, the' shortness of breath; had noticed there was that symptom before this accident; had him propped up in bed in May on account of it, etc. Much medical testimony was introduced for defendant, some of it being the testimony of physicians who had made an examination of the boy ; and that evidence tended to show that he was suffering from no heart trouble; that he had never had an abscess ; that there was no external evidence of his having received the injury; that he had some slight difficulty in breathing, which was probably the result of an attack of pleurisy or successive attacks, which had caused a thickening of the pleura on the outer surface of the lower portion of the left lung; that this pleurisy may have been the result of some disease, such as pneumonia or measles; and that it was extremely improbable, if not impossible, that an abscess such as it was alleged this boy had suffered from, could be caused by a blow or an external injury, unless it had been attended by some fracture of the ribs, although it was possible that if there had been previous inflammation a blow might have aggravated it, etc. The jury found for the plaintiff $5,000. The defendant moved for a new trial upon the grounds that the verdict was contrary to law and evidence, and excessive. The motion was overruled, and defendant excepted. Jackson & Jackson, for plaintiff in error. C. T. Ladson and J. T. Glenn, contra.