Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 2, 1902
Mr. Clayton to Mr. Hay.
Mexico, February 21, 1902.
Sir: I have the honor to acknowledge the receipt of your No. 540,a of July 16, 1901, instructing me to continue to remonstrate on all proper occasions against the delay in discharging or bringing to trial Americans charged with responsibility for railway accidents, and to lose no opportunity to impress upon Mr. Mariscal the proposition that the preventive and remedial objects of Mexican legislation in respect to railway accidents would be no less well—and perhaps better—subserved by following the general rule of law in that regard in other countries.
I inclose copies of the following correspondence:
A letter expressing to me the thanks of the El Paso Chamber of Commerce for my action and prompt report relative to the imprisonment of American railway employees in Mexico; my reply; a further letter from the secretary of the chamber, forwarding a newspaper article stating that 130 railway men were in jail in Jalapa, Orizaba, Veracruz, and Oaxaca; a letter to the consul at Veracruz and to the consular agent at Oaxaca, transmitting this newspaper article and as kino; them to make a careful and conclusive investigation as to how many, if any, Americans are confined in jail in their districts on account of railroad accidents growing out of the movement of railroad trains in Mexico; the replies of both, stating that no American is imprisoned in either district for reasons above mentioned; a communication from Division 69, Order of Railway Conductors, asking a report from me regarding the imprisonment of American railway men in Mexico; my reply thereto; my letter to the consular agent at Guaymas, requesting him to procure from the manager of the Sonora Railway Company a supplemental statement showing the date and cause of arrest of each of the 17 employees whom he reported as having been arrested and imprisoned during the past year (see inclosure in my No. 998b), how long each was detained, and the final disposition of each case; the consular [Page 796] agent’s reply, transmitting the supplemental report which gives the eventual disposition of the 17 cases of arrest of employees, of whom Mr. Bonsall, hereafter mentioned, was one, referred to in your lettera of July 16, 1901, to the El Paso Chamber of Commerce; the complaint of Nathaniel F. Bonsall of unreasonable delay in the trial of his case; my note presenting this complaint to the foreign office; Mr. Mariscal’s reply, forwarding the report of the third circuit judge, showing that the case is being conducted in accordance with law. This is the only case that has come to my attention since the date of my No. 998, June 27, 1901, which would indicate an improvement in the situation.
On November 8 last, in an interview, I spoke with Mr. Mariscal regarding changes in Mexican legislation relating to railway accidents. He said that if I would take occasion to study existing laws on the subject he would take pleasure in listening to any suggestions I might have to make. This led me to investigate the laws upon the subject.
I also inclose the following: A copy of a communication from J. L. Starr Hunt furnishing information as to the laws of Mexico relating to railway accidents and indemnification for loss and injury resulting therefrom; translations of the reference made to the civil and penal codes of the federal district; the railroad lawb and the commercial code,b both in English.
In view of the existing laws and the fact that they do provide for the civil responsibility of railroad companies, I ask to be instructed as to whether I shall pursue the subject of changes in legislation any further.
I have, etc.,
Mr. Russell, secretary of the El Paso Chamber of Commerce, to Mr. Clayton.
Sir: I have the honor to inclose herewith copy of the El Paso Daily Herald, containing correspondence between the Hon. John Hay, Secretary of State, and the El Paso Chamber of Commerce, relative to the imprisonment of American railway employees in Mexico. I am instructed by the board of directors of the El Paso Chamber of Commerce to express to you the thanks of the organization for your action and report in this matter.
We beg to extend to you, as to Secretary Hay, the proffer of our hearty cooperation in any capacity in which this organization can assist you in your efforts to protect American citizens against unjust imprisonment.
I have, etc.,
Mr. Clayton to Mr. Russell.
Mexico, July 29, 1901.
Sir: I have to acknowledge the receipt of your communication of the 25th instant and its inclosure, and to express my appreciation of the thanks of the board of directors of the El Paso Chamber of Commerce.
[Page 797]My report was based upon the best information I could obtain, and I shall be glad, if any errors are made plain to me, to correct the same, or to receive any additional information that may be sent me through any reliable source. I understand an article has been lately published concerning the Hay correspondence in relation to the matter. If you will kindly send me a copy of same you will oblige.
Very respectfully, yours,
Mr. Russell to Mr. Clayton.
Sir: I have the honor to acknowledge receipt of your letter of July 29, relating to the Hay correspondence in regard to the imprisonment of American railway employees in Mexico, and requesting us to send you “the article lately published concerning the Hay correspondence.” I have searched the files of the El Paso dailies, but am not sure that I know to what article you especially refer. However, I am sending you herewith copies of the El Paso Herald of July 24 and 26. Possibly one of these papers may contain the article you desire. I regret the tone in which some of the articles are written.
The people of El Paso and the railway employees interested appreciate the spirit in which you have prosecuted your search for information and the efforts which you have made. The chamber of commerce will esteem it a privilege to be permitted to cooperate with you in every possible way.
Thanking you for the cordial expressions, etc.,
Extract from the El Paso Herald dated July 26, 1001.
Ambassador Clayton could learn more about the men in jail if he would only send some one to Jalapa, Orizaba, Veracruz, and Oaxaca. There are 130 men in jail in these four places, and some of them have been there for two years. The records in some of the cases have been lost, and I know of several men there who have repeatedly asked for trial and been refused.
Mr. Clayton to Mr. Canada, United Slates consul at Veracruz.a
Mexico, August 20, 1901.
Sir: I inclose herein a copy of an article that appeared in the El Paso Herald, of El Paso, Tex., under date of the 26th ultimo, which relates to the great number of Americans said to be imprisoned at Jalapa, Orizaba, Veracruz, and Oaxaca.
I shall thank you to make a careful and conclusive investigation as to how many, if any, Americans are confined in jail at Orizaba, Jalapa, and Veracruz, on account of railroad accidents growing out of the movement of railroad trains in Mexico; and if you rind any persons so confined, to give me full particulars of each case, including the charges, date of arrest, whether trial has been had; and, if so, when begun; if and when convicted, and the nature of the sentence.
Yours, very truly,
Mr. Canada to Mr. Clayton.
Veracruz, August 29, 1901.
Sir: Referring to yours of August 20, I have to report that I have examined the jails and talked with the officials in Orizaba and Veracruz and wrote to Jalapa and that there is no American in prison in Orizaba, Jalapa, or Veracruz “on account of railroad accidents growing out of the movement of railroad trains,” nor any other cause in Orizaba or Jalapa. In Veracruz Ned Burr is in jail awaiting the action of the circuit court in Mexico City, to whom his case was appealed by his lawyer. He was sentenced by the lower court to a term of twenty years. There is also another colored man by the name of Charles Golden, charged with larceny, and his trial is now in progress. He can not furnish proof that he is an American except that he talks English.
* * * * * * *
I am, etc.,
Mr. Arthur, United States consular agent at Oaxaca, to Mr. Clayton.
Oaxaca, September 7, 1901.
Sir: I have made a careful investigation in regard to the Americans reported to be confined in jail in this city “on account of railroad accidents growing out of the movement of trains in the Republic of Mexico.”
I find absolutely none. About three years ago an engineer had charge of a train and became so intoxicated that the conductor, who was in about the same condition, undertook to run the engine and wrecked the train and killed one man. Both conductor and engineer were confined for about six months.
Since this accident no arrests have been made, but to my personal knowledge several brakemen have been killed by moving trains.
Respectfully,
United States Consular Agent.
Mr. Green, of the Order of Railway Conductors, to Mr. Clayton.
My Dear Sir: At a regular meeting of Division 69, Order of Railway Conductors, held in El Paso, Tex., August 3, 1901, I was appointed to ascertain, as far as possible, the number of railroad men (American citizens) now in prison in the Republic of Mexico. We desire to make this report as full as possible, and also correct, so that no railroad company or citizen of the Republic of Mexico can gainsay it. This report, when complete, will be forwarded to our Secretary of State in Washington, and one to our ambassador to the Republic of Mexico in the City of Mexico.
We desire you to forward to me at your earliest opportunity a report of any case of imprisonment you may know of, whether the case has been disposed of or not, whether it occurred this year or at any previous time. Please be careful and give facts, not hearsay.
Please give name or names of persons arrested, stating occupation, cause and date of arrest, where imprisoned, date of trial, date of parol or date of bond given, and the amount of bond. Give findings of the court and date of release or discharge. State what action the railroad company took in the case. Was American consul notified? If so, what action did he take? Do you know of any American citizen now in prison in Mexico on account of being arrested while in the discharge, of his duties? If so, give cause, and also secure a statement from him, if possible, no matter what his occupation, whether a conductor, engineer, fireman, brakeman, yard-master, or agent.
[Page 799]Please comply with the above or hand same to some railroad man who will, and greatly oblige Division 69, Order of Railway Conductors. Please take this up as soon as possible and write me fully.
Yours, respectfully,
M. P. F., Division 69, Order of Railway Conductors.
Mr. Clayton to Mr. Green.
Mexico, August 26, 1901.
Dear Sir: I have to acknowledge the receipt of your communication of the 4th instant, which, I take it, is a circular letter which you are sending out in various directions with a view to obtaining the information referred to, and that you did not send it to me with a view of my furnishing you the information asked. As I keep the Government at Washington advised of all the information I possess upon the question referred to, it would be useless for me to send information to you for the purpose of enabling you to send it back to me and to the Government at Washington.
Of course you have seen that portion of my report which was published in the El Paso Herald of July 24 last. Since that report was made there has been no complaint received at this embassy of the arrest and imprisonment of any railroad man. If you receive any information of any case which you think requires my attention, I I shall be glad to be advised; or if you hear of any case where railroad men have been arrested and not permitted to communicate with this embassy, I should be glad to be advised of all the facts, as no such case has up to the present time come to my knowledge.
Very respectfully, yours,
Mr. Clayton to Mr. Crocker, United States consular agent at Guaymas.
Mexico, August 2, 1901.
Dear Sir: In addition to the information contained in the statement of the Sonora Railway Company, transmitted by you to this embassy in your letter of June 19, 1901, in compliance with my request of the 30th of May last, I shall thank you to request Mr. Naugle, the manager of the above-named railway company, to have the kindness to furnish me with a supplemental statement which, together with that already furnished, will be similar to that furnished me by other railway companies, showing the date and cause of arrest of each of the 17 employees whom he reported as having been arrested and imprisoned during the past year, how long each man was detained, and the final disposition of the case.
Yours, very truly,
Mr. Crocker to Mr. Clayton.
Guaymas, September 26, 1901.
Sir: I have the honor to transmit herewith statement furnished by the Sonora Railway covering request contained in your letter of August 2.
Respectfully,
United States Consular Agent.
Mr. Naugle, assistant general manager of the Sonora Railway Company, to Mr. Crocker.
Dear Sir: In reply to your letter of the 9th ultimo, answer to which has been delayed on account of press of other matters, I beg to give you below a supplementary statement concerning employees of this road who have been imprisoned on account of railway accidents during the year ending June 1, 1901.
Conductor N. F. Bonsall, American, arrested (September 7, 1900; imprisoned thirty-seven days. Cause, one Antonio Palomina, Mexican, a trespasser, jumped from train in motion, run over and killed, Magdalena, September 7, 1900. Released under $6,000 bond. Case still pending.
Engineer C. E. Shanahan, American, arrested September 8, 1900; imprisoned two days. Cause, allowing his engine to run over to the American side at Nogales, account air not holding brakes, while conductor Bonsall was on train under arrest as above. Bonsall returned to Mexican side later on during the same day, upon which Shanahan was released the next day.
Yardmaster F. Corrales, Switchman E. Ruiz, Switchman F. Ruiz, Fireman J. Rodriguez, and Engineer A. Vojorquez, all Mexicans, arrested October 29, 1900; imprisoned one hour. Cause, a boy, Jose Boneo, stealing ride, jumped from train in motion, run over and killed, Guaymas yard, October 29, 1900. Declared innocent and released.
Engineer F. Gordon, American, arrested November 3, 1900; imprisoned twelve days. Cause, running over a deaf trespasser, Jesus Rodriguez, walking on track in Hermosillo yard, November 3, 1900. Released under $1,000 bond. Case still pending.
Brakeman P. Ramirez, Mexican, arrested November 9, 1900; imprisoned eighteen days. Cause, an American brakeman, John R. Pearson, killed while coupling cars in Hermosillo yard November 8, 1900. Released on account lack of merits to proceed against him.
Fireman A. Martinez, Mexican, arrested November 9, 1900; imprisoned sixteen days. Cause, same accident as last above. Released account lack of merits to proceed against him.
Engineer J. Ritz, American, and Fireman F. Viney, unknown, arrested November 22, 1900; imprisoned two days. Cause, one Jose Aldama found dead on track near Batuecas morning of November 12, 1900. Released account lack of merits to proceed against them.
Conductor G. E. Langworthy and Engineer C. W. Smith, both Americans, arrested November 17, 1900; imprisoned six days. Cause, an unknown American tramp found dead on track near Guaymas morning of November 17, 1900. Released under $1,000 bond for both. Case still pending.
Engineer J. Jefferson, American, arrested November 20, 1900, imprisoned four days. Cause, two Yaqui Indians found dead on track near Hermosillo morning of November 19, 1900. Declared innocent and released.
Conductor W. C. Budge, American, arrested November 20, 1900, imprisoned one day. Same cause as last above. Declared innocent and released.
Brakeman J. M. Rochin, Mexican, arrested November 19, 1900, imprisoned three days. Same cause as last two above. Declared innocent and released.
Referring to the case of Conductor Bonsall, the man killed, Antonio Palomina, boarded passenger train No. 1 at Magdalena for the purpose of buying some fruit from the news agent, jumped from the train while in motion, fell under the wheels and died from injuries received. Although the company and its employees were in no way to blame, Conductor Bonsall was arrested, thrown into jail, and charged with willful murder. The man killed had no right whatever on the company’s premises and lost his life through his own acts. The company surgeon at Magdalena, Dr. Padilla, is also mayor of the town, and was called immediately after the accident. The man’s left leg was badly mangled and, perhaps, if the surgeon had operated on him at once, his life might have been saved. Our company surgeon at Nogales, Dr. Chenoweth, an American, happened to be at Magdalena at the time and suggested to Dr. Padilla the importance of operating immediately, but with no effect. The local judge, before whom the case was tried, was strongly prejudiced against foreigners, ignorant of railroad operations, and influenced in favor of friends of the deceased, thereby being so partial as to make it appear that Conductor Bonsall pushed the man off the train and committed willful murder. During the thirty-seven days’ time that Conductor Bonsall was in jail, every possible effort was made by our attorney-general, Judge Robinson, and myself to secure his release under bond. When Conductor Bonsall was first arrested he was thrown into a jail with drunken Indians and [Page 801] criminals. We finally secured separate quarters for him in the yard of the jail by paying three special watchmen $1 per day each to guard him. This judge has since been removed by the governor without any solicitation on our part, as it was such a flagrant case of incompetency, etc. Conductor Bonsall has been declared innocent in the Federal district court at Nogales and the case is now up for revision in the supreme circuit court at Mexico City.
Yours, truly,
Mr. Bonsall to Mr. Clayton
Dear Sir: I have been employed as a passenger conductor by the Sonora Railway Company for the past four years. On the morning of September 7, 1900, at about 1.15 o’clock, as my train was pulling out of Magdalena, a man, whom I afterwards learned had boarded the train while standing at station to buy some fruit from newsboy, remained aboard until train pulled out and jumped off and fell under the wheels and had one leg crushed.
I knew nothing of the accident, as I was busy working my train at the time. I was notified by telegraph at next station. On my arrival at Guaymas I took street ear to go to the company lawyer to consult him about the accident. When I left the car two policemen lined up, one on each side of me, and marched me a distance of one-half mile or more through the streets of Guaymas to jail, refusing me permission to see the attorney. I was kept in jail until about 4 p.m.
It was the intention of the Mexican authorities to send me direct to Magdalena, but through the protestations of our general manager I was allowed to run my train to Nogales, under the surveillance of one guard, with instructions from the prefecto of Guaymas to report to the Federal judge at Nogales on the morning of my arrival. When I arrived at Magdalena, the chief of police, with quite a number of his men, were at the station and wanted to take me to jail. There was a great crowd of men there also, and their actions frightened me, as I did not know what they would do to me. After the chief of police and my guard consulted together he decided to allow me to resume my trip to Nogales. About 40 miles south of Nogales the pipe on engine leading from air pump to air drum broke, so we could not use the air brakes and had to use hand brakes. We got along very well until we reached the summit, it being up grade. From there to Nogales we have a 2 per-cent grade. It was impossible to control the train with hand brakes, consequently we ran across the line some distance into the United States before we got the train stopped. I went home and got my breakfast and at about 11 a.m. I went across the line into Mexico and reported to the Federal judge. He was very angry. Said I had ignored his authority and defied his Government by crossing the line into the United States. While I was in no way responsible, as it was purely accidental, he sent me to jail and kept me there until the train went south at 10 o’clock p.m., then sent me back to Magdalena under two guards. I arrived there about 1.15 a. in., September 9, and was taken to jail and locked in a dungeon, without any bedding whatever, and spent the night on a cold brick floor as best I could. After remaining in the dungeon three days I was taken before the judge of the first instance between two soldiers with guns and fixed bayonets. The judge asked me if I knew what I was accused of. I told him I did not. He said I was accused of pushing a man off train while in motion, and that the man had died of injuries received. I told him that I was not guilty of the charge, that I did not touch the man in any way. I was then told to sign this statement and was then sent to jail.
I will state here that I did not know the man who was hurt and had never seen him that I know of. I was taken before the judge three or four times afterwards to hear the testimony of witnesses for the prosecution, but was denied the privilege of having my lawyer in court to hear their testimony. I was kept in the dungeon six days, until our general manager made arrangements to pay a special guard day and night that I might be allowed the privilege of the jail yard.
I was released from prison on October 12, on a cash bond of $6,000, which was furnished by railroad company. For the succeeding seven months I was compelled to report to the federal judge in Nogales, Sonora, Mexico, once each week, until I had my final hearing, when the federal judge told me I was a free man; he had no evidence to convict me. He rendered his decision declaring me innocent about April [Page 802] 25, 1901, and forwarded same through the regular channel to the supreme circuit court at the City of Mexico, where it has been pending ever since.
I therefore respectfully request your good offices with the Mexican Government to see that I have speedy and full justice done me, and that I am fully vindicated of the charges pending against me. I am 61 years old and have served half of my life in the capacity of railway conductor. This is the first and only time I have ever been accused of mistreating anyone on my train.
Very respectfully,
Mr. Clayton to Mr. Mariscal.
Mexico, October 31, 1901.
Mr. Minister: I have the honor to transmit herewith a copy of a communication from Mr. Nathaniel F. Bonsall, addressed to me, requesting my good offices with the Mexican Government to secure for him speedy and full justice.
It will be observed from said communication that over a year ago he was arrested in Guaymas and confined in jail under the charge of homicide; that although released on bail he was, for the succeeding seven months, compelled to report once a week to the federal judge at Nogales, and since the 25th of April last the case has been pending under revision before the circuit court of the City of Mexico.
I respectfully solicit the good offices of your excellency for the expedition of this case.
I have, etc.,
Mr. Mariscal to Mr. Clayton.
Mexico, November 13, 1901.
Mr. Ambassador. I have the honor to transmit herewith to your excellency a copy of a report made to this department by the third circuit court in regard to the condition of the cause against Nathaniel Bonsall for the crime of homicide, and I beg to call your excellency’s attention to the latter part of the report.
I renew, etc.,
Report of the third circuit court on case of Nathaniel Bonsall.
The attorney-general of the Republic, in official communication of the 8th instant, was pleased to send me a copy of the note addressed to him by your department on the 4th instant, relating to the complaint made by the American, Nathaniel Bonsall, to the ambassador of the United States, to the end that the court under my charge might report as to the condition of the action against the said Bonsall for the crime of homicide.
In reply to the said communication and with reference to the note of your department, I have the honor to inclose a copy of the report made by the clerk of this court, which is literally as follows:
“Licentiate Ismael Elizondo, clerk of the third circuit court, in compliance with the foregoing order on the margin, has the honor to report as follows:
“That on September 7, 1900, criminal action was brought against the American, Nathaniel Bonsall, conductor of the Sonora Railway, in the district court of Sonora, as presumably guilty of homicide through negligence. That the same case having been duly tried, the judge in the same, on April 25 last, pronounced final sentence acquitting the said Bonsall of all responsibility. That said decision having been appealed by the agent of the public ministry attached to the district court of Sonora, and the appeal having been admitted, the case was forwarded to this court, by which it was received on May 13 last, and on the day following an order was issued, [Page 803] requiring the accused, Bonsall, to appoint an attorney, resident in this capital, for his defense, to represent him in second instance, or to say whether he would empower this court to appoint him an official defender, and to that end the proper communication was forwarded to the district court. That on June 14, following, a communication was received by which Bonsall appointed Licentiate Miguel S. Macedo, who accepted the appointment and protested that he would faithfully perform his duty as his defender. The case having been presented for the hearing of the answer to the objections made by the public minister, the defender presented a petition on July 28 last, saying that at the time fixed he would make answer to the objections; and the hearing having been set for the 17th of July following, it was not had for the reason that Licentiate Macedo, by petition which he presented on the 15th, resigned his appointment of defender; that on the said day, July 15, the accused, Bonsall, was required to appoint another defender, the proper order being sent to the district court of Sonora, which order was returned on October 22 last, accompanied by a petition dated the 14th of the said month, in which Bonsall appointed Licentiate Eduardo Viñas his defender; and on the said October 22, the day on which the said petition was received, the accused, Bonsall, appeared personally before this court and said that beside Licentiate Viñas he appointed Licentiate Rafael Icaza to defend him also; the appointments having been accepted by the persons named, on their petition the record was ordered to be placed in the clerk’s office in order that they might take such notes as they might deem necessary for Bonsall’s defense. So soon as they finish taking these notes a day will be set for the hearing. Such is the present condition of the case in question.
“Ismael Elizondo.
“Mexico, November 12, 1901.”
By the foregoing report the baselessness of Mr. Nathaniel Bonsall’s complaint is shown, for the reason that the delays experienced in the trial arose solely from the withdrawal of the defender, Licentiate Miguel S. Macedo, and the necessity for the appointment of another defender by the accused, without which the continuance of the case was legally impossible.
Furthermore, Mr. Secretary, you may rest assured that, notwithstanding the pressure of business in this court, I will make all endeavor to procure the prompt and preferential dispatch of the case to which your said note refers.
I protest, etc.,
Mr. Hunt to Mr. Clayton.
Dear Sir: Replying to certain inquiries made in writing by Mr. McCreery, I beg leave to submit the following:
Article 1 of the Spanish railway law of 29 April, 1901, divides the railways under federal jurisdiction into three classes:
- 1.
- Of general communication, i. e., those that run through two or more States;
- 2.
- Of local interest in federal district and the territories; and
- 3.
- Of local interest in the states, i. e., when these last-mentioned lines have a federal concession, a subsidy, exemption from taxation, or any other form of assistance from the Federal Government.
Article 176 of the same law says:
“The railroads dependent on the federation, to which article 1 of this law refers, are subject exclusively to the federal powers, legislative, executive, and judicial, according to their respective jurisdiction, providing always that it refers to any of the following cases:
- “I. Contribution or impost of any description upon railroads and their dependencies.
- “II. Fulfillment of the obligations that the concession or that federal requirements may impose on the company.
- “III. Declaration of the forfeiture of the concession or any of the privileges contained therein.
- “IV. Condemnation of the property for public use.
- “V. Tariffs.
- “VI. General rules of the service.
- “VII. Construction and repairs of the works. Delinquencies committed against the security and integrity thereof or against the exploitation of the roads.
- “VIII. Security of the same works to which the companies are bound and the faults and delinquencies of these companies or their employees for late trains, carelessness or negligence in the service, and for accidents or mishaps in exploitation.
- “IX. Collisions or derailing of train, rules.
- “X. Violation of fiscal laws and regulations.
- “XI. Violation of correspondence.
- “XII. Mortgages and obligations on the railroads and their registry and inscriptions, which should be done in Mexico City.
- “XIII. Sale of the railroads and in general all the questions which affect the ownership of the road or in any way connected therewith.
- “XIV. All classes of contentions and proceedings from the moment that the railroad may be the object of intervention, embargo, or sequestration.
- “XV. Contentions and questions upon the lease of a road or affecting its exploitation.
- “XVI. All classes mentioned in articles 161 to 170 of this law. (Special rates, false classifications, etc., when act is with criminal intention.)”
All crimes or misdemeanors in contravention of the railway law are judged by the penal code of the Federal District, since articles 169, 170, and 178 of the railway law read as follows:
- “Art. 169. In all the cases mentioned in articles 161 to 1(57 the dispositions of the first book of the penal code shall be applied in the terms which its third article disposes and equally those of the second book of the same code in regard to civil responsibility.
- “Art. 170. The fines incurred through infractions of the law shall enter the federal treasury, observing the rules established in the penal code for their imposition and collection.
- “Art. 178. Questions that arise over the interpretation and fulfillment of the concessions or any of the stipulations therein contained shall be decided by the competent tribunals of the Republic and in so far as may not be determined by special laws according to the civil code of the Federal District for which reason these contracts are governed by the dispositions of articles 698 and 699 of that code.”
According to articles 330 and 331, Fraction II of the penal code of the Federal District made of universal application by the railway law, railway companies are responsible for the acts and omissions of their employees. Article 332 states that though employees are punishable for negligence, the railway companies are also civilly responsible.
All persons or corporations responsible for loss and damage can be held civilly liable, according to the terms of articles 1458 to 1487 of the civil code of the Federal District, and articles 57(5 to 604 of the commercial code fix the civil liability of transportation companies.
If you have not these codes I can get you the latter in English and can translate the chapter of the civil code on civil liability.
The foregoing answers the first two questions by Mr. McCreery.
To the third, I can say there are no especial penalties imposed on railway companies for failure to introduce new appliances; their liability for negligence is covered by the answer to the other questions.
To the fourth, no one is held responsible if the accident was unavoidable; if the courts decide that there is responsibility of an employee of a railway, then the company is held responsible for damage done either to passengers or to other employees. There is no exemption of the company from liability because the damage has been done to a fellow-servant of the careless employee.
All this refers to the legal responsibility. You doubtless know how difficult it is in point of fact to recover from railway companies because they are favored by the Government, have the best attorneys in the Republic, and because there is no damage recoverable for anguish in the courts of this Republic.
Should further details be desired, please advise me and I shall be glad to furnish them.
Very truly, yours,
P. S.—Should any railways exist in this Republic that are not comprehended in Article I of the railway law, then the state, penal, and civil codes would apply thereto, which codes closely resemble as a rule those of the Federal District.
Extract from civil code of the Federal District and Lower California.
Chapter III.—Of property considered according to the persons to whom it belongs.
- Art. 698. Public property in that which belongs to the federation, to the States, and to the municipalities.
- Art. 699. Public property shall be governed by the provisions of this code when not determined by special laws; it is subject in all cases to the rules for prescription established by the same.
Extract from civil code of the Federal District and Lower California.
Chapter IV.—Of civil libility.
- Art. 1458. Causes of civil liability
are:
- I.
- Failure to perform a contract.
- II.
- Acts and omissions expressly subject to the same by law.
- Art. 1459. The contractor who fails to perform his contract, either in substance or in form, shall be liable for the damages and prejudices which he may cause to the other party, unless it be because of an act of the latter, vis major, or fortuitous event to which the former may not have contributed in any manner.
- Art. 1460. Liability because of fraud obtains in all contracts.
- Art. 1461. A contract in which the right is waived to claim liability in the future because of fraud is void.
- Art. 1462. There is no liability because of fortuitous events except when they are caused or contributed to by the contractor and when he has expressly accepted the liability.
- Art. 1463. The liability of which this chapter treats, besides the return of the thing or its price, or that of both, if necessary, involves the repair of the damages and indemnity for the prejudices.
- Art. 1464. Damage is the loss or deterioration of interests suffered by reason of failure to perform a contract.
- Art. 1465. Prejudice is the loss of the legitimate profit which might have been obtained by the performance of the contract.
- Art. 1466. Damages and prejudices must be caused by the immediate and direct failure to perform a contract, whether they be already caused or necessarily will be caused.
- Art. 1467. If the thing is lost or has been so badly damaged, in the opinion of experts, that it can not be used for the purpose for which it was intended, the owner shall be paid the full value of the same.
- Art. 1468. If the damage be not so great the amount of the same only shall be paid to the owner upon the return of the thing.
- Art. 1469. The value of the thing shall be that which it would have at the time of its return to the owner, except in such cases as the law or the contract may fix another time.
- Art. 1470. In estimating the damage to a thing the depreciation of its absolute value shall not only be considered, but also the necessary expenses of the repair of the same.
- Art. 1471. In fixing the damage to and the value of a thing the affectional or sentimental value shall not be considered unless it be proved that the party liable destroyed or damaged the same with the object of hurting the feelings of the owner; the increase made on this account shall not exceed a third of the usual value of the thing.
- Art. 1472. Civil liability may be regulated by agreement of the parties, saving the cases in which the law expressly provides otherwise.
- Art. 1473. Civil liability can be claimed only by him who has the right to exact the performance of the contract and by him in whose favor it is expressly established by law.
- Art. 1474. When several parties are civilly liable the rules relating to joint obligations shall be observed if the obligations of this class an; those which serve as the basis of the contract, otherwise each shall answer for himself.
- Art. 1475. If, in order to save a town, damage be caused to one or more persons, or their property be occupied, indemnification shall be made according to the provisions established by the organic law of article 27 of the constitution.
- Art. 1476. The owner of a building is liable for damages caused by the fall thereof if it be because of omission to make repairs or because of defective construction.
- Art. 1477. In the second case of the foregoing article the owner has recourse against the architect, in accordance with article 2485.
- Art. 1478. The prescriptions of article 1476 include damages caused by the partial fall of a building, or that of trees, or of any other object of private property, those which proceed from the breaking of ditches or dams, those which are caused by the construction or repairing of buildings, and those which are the result of any legal act in the execution of which there may have been negligence.
- Art. 1479. There may also be civil liability because of damage caused by industrial establishments, either because of the weight and movement of the machinery, or because of deleterious exhalations, or because of agglomerations of matter or animals injurious to health, or by reason of any other cause which may really prejudice the neighbors. These matters are subject to police regulations.
- Art. 1480. The damages caused by animals shall be governed by the penal code.
- Art. 1481. Liability arising out of a thing done between others (res inter alios acta) shall be governed by the special prescriptions of this code, and in the absence of such by those corresponding of the penal code.
- Art. 1482. When no interest is mentioned in a contract, if any should have to be paid under decision, it shall be at the rate of 6 per cent per annum.
- Art. 1483. The payment of judicial costs shall be on account of him who fails to perform the contract, and it shall be made in the terms prescribed by the code of procedure.
- Art. 1484. Civil liability, caused by the nonperformance of a contract, is prescribed at the time of the prescription of the contract.
- Art. 1485. Liability based on the provisions of articles 1480 and 1481 is prescribed within the terms of articles 1095, Section VIII, and 1102.
- Art. 1486. The provisions of this chapter shall be observed in all cases not included in any special precept of the code.
- Art. 1487. In the matter contained in this chapter the administrative regulations shall be observed in all that which may not be contrary to the foregoing provisions.
Extract from the penal code of the Federal district and Lower California.
BOOK 2.
Chapter III.
- Art. 326. No one shall be held to be civilly liable for an act or omission under a penal law unless it be proved that he has taken unlawful possession of the property of another; that he has personally, or through another, illegally caused damages and prejudices to the complainant; or, that being able to prevent them, they were caused by a person over whom he had authority.
- Art. 327. If any of the above conditions is proved the defendant shall incur civil liability, whether he be acquitted or convicted of criminal liability.
The principals and seconds or witnesses of a duel, if the same be fought and death or wounds be caused, are included in this rule; but the physicians and surgeons present at the combat, as such, are not.
* * * * * * *
Chapter IV.—Assessment of civil liability upon those liable.
- Art. 350. When several persons are condemned for the same act or omission each and all of them shall be obligated for the total amount of the civil liability, and the complainant may recover the same from all of them jointly, or from whomsoever of them he may deem it fit. But if he should not sue all of them, those who pay may recover from the others such part as they ought to pay in accordance with the following article.
- Art. 351. When several persons are condemned to the satisfaction of the civil liability for the same act or omission, if the law does not designate the sum for which [Page 807] each is liable, the criminal judge shall fix the same in proportion to the penalty imposed, and the civil judges in proportion to those imposed by the former, or to those which should be imposed if the decision should not yet be made.
- If no penalty should be imposed because of its being found that the authors of the act or omission were not guilty of any offense or fault, but, nevertheless, incurred civil liability, the same shall be assessed pro rata upon those liable.
- Art. 352. It is understood that the prescriptions of article 351 do not prejudice those of article 350, and that they are solely for the case in which one who is liable pays more than his quota who may then recover the excess from the other parties liable.
- Art. 353. In a matter of recovery only the person in whose possession the thing or its products are found may be sued; but if he should not be the one who took unlawful possession he may avail himself of the recourse provided by article 303.
- Art. 354. The prescriptions of article 350 do not include receivers except with regard to the damages and prejudices on account of the things which they may have received, but not on account of other things stolen by the direct author of the offense.
- Art. 355. Those who, because of
being minors or because of mental alienation, are under parental
control or under the care of a guardian and masters, are not
included in articles 350 and 351; with regard to these, the
following rules shall be observed:
- I.
- The insane and minors who act without judgment shall be liable only when those who have them in charge are not held to be civilly liable or have not property wherewith to cover it.
- But if they are not under guardianship or parental control they shall be the only ones liable.
- II.
- When the minor acts with judgment he shall have no right to recover from his guardian, nor the latter from the former, except for one-half of the liability, if only one of them pays the full amount.
- III.
- When employees and servants act in disobedience of the orders of their masters, or do not obey them implicitly, the latter may recover from the former all that they may have to pay for damages and prejudices.
But if the damages and prejudices caused are a necessary consequence of the orders of the masters, and the employees and servants act in good faith in the performance of an act not criminal in itself, they being ignorant of the circumstances which constitute it an offense, they do not incur any civil liability with regard to the party prejudiced, and their masters can not recover from them that which they may have to pay.
Extract from, penal code of the Federal district and Lower California.
Chapter III. Book I. Title 2.—Persons civilly liable.
- Art. 330. In order that, in accordance with articles 326 and 327, masters may be liable for their dependents and servants, it is a precise condition that the acts or omissions of the latter, which give rise to the liability, shall occur in the service to which they are assigned.
- Art. 331. Under the conditions of
the foregoing article the following are liable:
- I.
- The members of an association for acts or omissions of its managers in the same terms which, under the civil or mercantile law, they might be liable for other obligations contracted by the latter.
- Married women, whether there is or is not legal partnership (sociedad legal) or community of property, are excepted from this rule, as they are not responsible for the offenses of their husbands.
- II. Owners of diligences, coaches, wagons, or vehicles of any kind, whether for their own use or for hire; owners or overseers of droves of beasts of burden; railway companies; postmasters and mail contractors; owners of canoes, boats, and vessels of all descriptions and their captains; owners and managers of inns, taverns, lodging houses, and all other houses devoted wholly or in part to the regular reception of guests for pay; owners and managers of coffeehouses, eating houses, baths, and livery stables, for the acts and omissions of their employees or servants.
- This liability and that mentioned in the foregoing articles shall be governed by the rules expressed in the following articles:
- III.
- The State, through its public functionaries, employees, and dependents; but its obligation is subsidiary, and it shall be paid out of the idemnification fund.
- IV.
- Municipal corporations, with their funds, in the same terms as the State, through the employees and servants, provided that the said employees and servants shall cause the damages and prejudices in the exercise of their offices and that they be appointed and paid by the corporations, and that they be under the orders of and subject to removal by the same.
- Art. 332. The civil liability of the persons mentioned in the two foregoing articles does not exempt those upon whose account it is incurred; the party prejudiced may require it in accordance with the prescriptions of articles 350 and 355.
The case in which the person who causes the damage acts in the name of and by order of another, executing in good faith an act not criminal in itself, and with excusable ignorance of the circumstances which constitute it an offense, is excepted from this rule. Then the agent is not liable either in regard to the party prejudiced or to the person in whose name he acts.
- See Foreign Relations, 1901, p. 410.↩
- See Foreign Relations, 1901, p. 408.↩
- See Foreign Relations, 1901, p. 411.↩
- Not printed.↩
- Not printed.↩
- Identical communication sent to Charles H. Arthur, United States consular agent at Oaxaca, with reference to Americans imprisoned at that place.↩