[252 U.S. 308, 309] Messrs. Frank Feuille and Walter F. Van Dame, both of Ancon, C. Z., for plaintiff in error.
Messrs. Wm. C. MacIntyre, of Cristobal, C. Z., and Felix E. Porter, of Ancon, C. Z., for defendant in error.
Mr. Justice BRANDEIS delivered the opinion of the Court.
Toppin was struck by a locomotive of the Panama Railroad Company while riding a horse in the city of Colon. He sued the company for damages in the District Court of the Canal Zone, alleging negligence, and recovered a verdict. The judgment entered thereon was affirmed by the Circuit Court of Appeals for the Fifth Circuit (250 Fed. 989, 163 C. C. A. 239), and the case is here on writ of error.
The main contentions of the company are here, as in Panama Railroad Co. v. Bosse, 249 U.S. 41 , 39 Sup. Ct. 211, that the trial court erred in holding applicable the rule of respondeat superior and the rule permitting recovery for physical pain suffered. The important difference in the two cases is this: There the accident occurred in the Canal Zone; here in the republic of Panama. The company insists that the Bosse Case is not controlling, because the questions affecting liability must here be determined by the law of that republic, the place where the accident occurred. Slater v. Mexican National Railroad Co., 194 U.S. 120 , 24 Sup. Ct. 581; Cuba Railroad Co. v. Crosby, 222 U.S. 473 , 32 Sup. Ct. 132, 38 L. R. A. (N. S.) 40. The law [252 U.S. 308, 310] of Panama is pleaded by both parties and evidence thereon was introduced by both; but we are not limited to this evidence, as they agree that we may take judicial notice of the law of Panama existing February 26, 1904, when the Canal Treaty was proclaimed, and that, in the absence of evidence to the contrary, the law then prevailing there will be presumed to have continued i force.
First. The company contends that the jury should have been instructed that under the law of Panama the company was not liable if the accident resulted from a criminal act of its employes; there being evidence that it was due to running the locomotive at a rate of speed prohibited under penalty by the Police Code of Panama. That Code, known as Ordinance No. 87 of the year 1896, provides (articles 488, 489):
The Panama Law No. 62 of 1887 had provided in article 5:
And article 2341 of the Civil Code provides:
It would seem clear from a reading of these provisions that the company would not be relieved from liability in damages for injuries resulting from the negligence of its employe, merely because the negligent act was also punishable as a crime. And the Colombian authorities to which our attention has been called tend to confirm this construction. 1 There seems to have been a rule of Practice under the Colombian Judicial Code ( article 1501)2 by which, if the civil action and the criminal action arising out of the same acts are not brought at the same time, the civil action cannot be prosecuted until the conclusion of the criminal action with the condemnation of the delinquent. But such rule obviously can have no application here; among other reasons because it refers to the case where the same person is liable both civilly and criminally. Here it is the engineer who is liable criminally under the Police Code and the company against whom civil liability is being enforced.
Second. The company contends that by the law of Panama it cannot be held liable for the injury caused by the negligence of its engineer if it was careful in selecting him, because the law of Panama does not recognize liability without fault. This contention was made and rejected by the Supreme Court of Colombia in a case similar to the case at bar. 3 There suit was brought against the empresario of a railway to recover for the loss of a house by fire due to the negligent operation of locomotive. [252 U.S. 308, 312] The court rested the liability upon section 2347 of the Civil Code,4 declaring that all doubt as to the existence of the necessary dependency was removed by article 5 of Law 62 of 1887, which 'without in any way mentioning the dependents, employes, or workmen of railway enterprises, makes their empresarios responsible for the damages and injuries which they may cause to persons or to property by reason of the service of the said roads.' The court continues: 'And there is not in the record any proof whatever that any care or precaution, either on the part of the empresario or the engineer, had been taken to prevent the fire, the proof that the empresario on his part had exercised much care in the selection of his employes not being sufficient in the opinion of the court, because the diligence and care here treated of, is that which ought to have been exercised in order to prevent an injury that coud have been easily foreseen.' 5 This case seems to overrule in effect the principal authority to which the plaintiff in error has referred us6-in fact, it is not unlikely that such was the object of article 5 of Law 62 of 1887
[252 U.S. 308, 313] Third. The contention that the lower courts erred in allowing recovery for physical pain was made and overruled in Panama Railroad Co. v. Bosse, supra, 249 U.S. 47 , 39 Sup. Ct. 211. As the decision there rested upon article 2341 of the Civil Code of Panama, it is applicable whether the lex loci or the lex fori should be held controlling as to such damages. Exception was also taken to the ruling that 'if the plaintiff has developed tuberculosis of the spine as a result of the injuries received' the tuberculosis may be considered as an element of damages. The instruction was given with such explanations as to have been clearly unobjectionable.
[ Footnote 1 ] Cecilia Jaramillo de Cancino v. The Railroad of the North, Supreme Court of Justice of the Republic of Colombia, XIII Judicial Gazette, Nos. 652-653, decided December 16, 1897.
[ Footnote 2 ] Ruperto Restrepo v. Sabana Railway Company, Supreme Court of Justice of the Republic of Colombia, III Judicial Gazette, No. 353, pp. 332-334, decided July 19, 1892.
[ Footnote 3 ] Cancino v. The Railroad of the North, supra, note 1.
[ Footnote 4 ] Article 2347: 'Every person is responsible not only for his own actions for the purpose of making good the damage, but for the act of those who may be under his care.
[ Footnote 6 ] Ramirez v. The Panama Railroad Company, Supreme Court of Justice of Colombia, 1 Gaceta Judicial, No. 22, p. 170 (June 10, 1887).