by John Marshall Harlan

“ By 'ordinary care' is meant such care as a person of ordinary prudence would exercise under like circumstances. You are therefore instructed that, if you find and believe, from the evidence, that the engine and flat car used for switching purposes were reasonably safe, and that the Texas & Pacific Railway Company exercised ordinary care in the selection of the same, and the injury complained of was not the result of a failure on the part of the Texas & Pacific Railway Company to exercise such ordinary care, then you will find for the defendant.'
1. ”

“ Justice Bradley, upon the subject of the relative rights and duties of a railroad company and the owner of a vehicle crossing its track, said: 'Those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care.' This principle was approved in Railroad Co. ”

“ The action shall not abate by the death of either party to the record if any person entitled to the benefit of the action survives. If the plaintiff die pending the suit, when there is only one plaintiff, some one or more of the parties entitled to the money recovered may, by order of the court, be made plaintiff and the suit be prosecuted to judgment in the name of such plaintiff for the benefit of the persons entitled. ”

“ The court then instructed the jury, at the request of the defendant, as follows: 'You are further instructed that railway companies are not required to furnish the best and latest appliances, but the appliances and machinery used by them in the carrying out of their business must be reasonably safe, and they are only required to exercise ordinary care to select and keep their appliances and machinery in safe condition. ”

“ When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stage coach or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents. ”

“ The defendant is therefore not responsible for any negligence that caused his death, but if responsible at all, it must be under the third and fifth charges above.'
At the request of the plaintiffs the court gave this special instruction: 'The law does not exact of an employ e the use diligence in ascertaining defects in the appliances or instruments furnished by a railroad company, but charges him with knowledge of such only as are open to his observation. ”

“ If the parties entitled to bring suit fail to do so within the time prescribed, it becomes the duty of the personal representative of the deceased to commence and prosecute it. By whomsoever brought, the jury may give such damages as they think proportioned to 'the njury' resulting from the death. ”

“ The master, however, is not responsible if the employ e had full knowledge of such defect or want of adapability of the machinery used to the purpose for which it was used, nor is he liable if deceased contributed by his own neglect to his death.
'Louis D. Gentry was a fellow servant of the employees of defendant operating the switching train that killed him. ”

“ The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be liable for the debts of the deceased. ”