Mr. Frank Feuille, of Ancon, Canal Zone, for plaintiff in error.
Mr. Theodore C. Hinckley, of Panama, Republic of Panama, for defendant in error.
Mr. Justice HOLMES delivered the opinion of the Court.
This is an action brought in the District Court of the Canal Zone for the Division of Cristobal to recover from the Panama Railroad Company for personal injuries suffered by the minor, Pigott, in the City of Colon, Republic [254 U.S. 552, 553] of Panama. Pigott recovered a judgment which was affirmed by the Circuit Court of Appeals. 256 Fed. 837, 168 C. C. A. 183. The case is brought to this Court under the Panama Canal Act, August 24, 1912, c. 390, 9; 37 Stat. 560, 566 (Comp. St. 10045). The facts may be stated in a few words. The minor, a boy of seven, was run over when attempting to cross the railroad track on a street in Colon. There was evidence that the crossing was much used and that especially in the afternoon, the time of the accident, there usually were many children about; there were however, neither gates nor a watchman at the place. A hedge higher than the child somewhat obstructed the view. The engine was backing a box car and did not have the lookout required by the company's rules. There was evidence also that it gave no warning by bell or whistle. In short by the criteria of the common law the plaintiff had a right to go to the jury with his case.
The fundamental argument for the plaintiff in error is that the law of Panama was not applied in determining the principles of liability or in fixing the rule of damages. It is contended that if, as there was evidence to prove, due care had been used in the selection of servants by the railroad, the company was not answerable for their negligence, and that in any event there could be no recovery for pain. Both of these contentions are simply attempts to reargue what was decided in Panama Railroad Co. v. Toppin, 252 U.S. 308 , 40 Sup. Ct. 319. The plaintiff in error certainly did not get less than it was entitled to when, in view of contradictory testimony from lawyers on the two sides, the Court left the law of Panama to the jury. The Court was warranted in also leaving to the jury the question whether proper care required the company to have a flagman or gate at the crossing and the other safeguards that we have mentioned. Grand Trunk Ry. Co. v. Ives, 144 U.S. 408 , 12 Sup. Ct. 679. In view of the extreme youth of the plaintiff we cannot say that the Court erred in allowing the jury [254 U.S. 552, 554] to attribute his misfortune to the defendant's conduct alone, whatever difficulties there might be in the case of an older person; and we perceive no other ground for not allowing the verdict and the decision of the two Courts below to stand.