SULLIVAN 'V. CHRYSOLITE SILVER MIN.
(Circuit Oourt, D. Oolorado.
October 16, 1884.)
When, in an action for personal injuries caused by defendant's negUgence, upon the whole testimony the court would not feel justified in sustaining; a verdict for the plaintiff, it should direct a verdict for the defendant; and that, although there may be some evidence which would raise a possibility or a suspicion that the plalOtiff was entitled to recover.
Motion for New Trial. Mr ..Morrison, for plaintiff. J. B. Bissell, for defendant. BREWER, J., (orally.) The case was tried before a jury. Attbe close of the testimony the jury were directed to return a verdict for the defendant. Plaintiff asks a new trial. It is an action under the statute for damages for negligence causing the death of the ancestor of the plaintiffs. The facts are these: The decedent was one of a party of three working at the bottom of a mine; the signal was given by the shift-boss to lower the cage; it did not come down as quickly, perhaps, as expected. It should be stated, first, that at the bottom of the shaft there were two compartments: one a pump compartment, and the other, where they were at work, a cage compartment. If the cage came down in the one compartment anybody under it would be struck. It was perfectly safe for anyone, when that cage was descending, to step into the pump compartment; it was also reasonably safe for parties to stand in the corner of the pump compartment, and the cage could pass down without touching. Instructions were given by those in charge that whenever that cage was called for, or was coming down, for the employes to step into the pump compartment, where, of course, there' would be no danger. The testimony of one of the two survivors is that, up to the time of this injury, they had always obeyed that order, and gone into the pump compartment. There is no dispute in the testi.mony but what this order was given to the decedent, and he had been working there for two or three weeks, at least, perhaps more. He stood in the corner of this cage compartment, and, the cage not coming down, for some reason unknown, stepped forward, and as he stepped forward tbe cage fell, struck and killed him. And it was argued very forcibly by the counsel for the plaintiff that a man in that position was not bound to wait indefi.nitely. Finding that the cage did not come as called for, he might naturally think there was danger-some trouble about the cage; that it might come down hastily; and might properly jump into or hasten to a place which would be safe; and that it could not be affirmed that it was negligence on his part to take that risk; and several illustrations were cited in respect to a descending elevator. That is all very true, but for the antecedent fact that he had no right to stand in that
BULLIVAN V. CHRYSOLITE SILVER MIN. CO.
comer. It is true, the shift-boss himself stood in another corner, but that was in disobedience to the orders. If he had been standing in a place where by the orders he was authorized to stand, and had simply sought a place of more apparent l:lafety, it might be said that such an act was not negligent; but when, in the first instance, he assumed a place which he was forbidden by the orders of the com· pany to occupy, which was comparatively dangerous, and had failed to take the place which, by like directions, he was required to take, then his action in going from one place to another is at his own risk; he can excuse himself for his action only when he has occupied the place which he had been directed by the company to occupy. Counsel very earnestly, too, pressed upon the court that, whether the court thought or not that such action was negligent, it was a matter which should be submitted to the judgment of 12 'men, that of It jury, and that it ought not to be taken from them, because they being men in daily life, more familiar with practical affairs, would be more apt to decide correctly what was and what was not negligence; and it was urged that it was trespassing upon the province of a jury to take that question from them. I think the rule controlling federal courts-one that is also recognized in some of the state courts-is that when upon the whole testimony, the court would not feel justified in sustaining a verdict for the plaintiff, it should direct a verdict for the defendant; and that, although there may be what is sometimes called a "scintilla" of testimony, or something which would raise a possibility or a suspicion that the plaintiff was entitled to reo cover. The court is responsible for every judgment that is rendered, and should never avoid or shirk that res'ponsibility; and I think much of the complaint which exists to-day against the jury system arises from a hesitation on the part of many judges to assume their full reo sponsibility. A question arises of negligence or otherwise, and the court says it is a question of fact,-let it go to the jury; and although clearly of the opinion that the verdict should be one way or the other, yet they evade the responsibility which properly belongs to it by saying 12 men have said so and 80, and it is their province to settle questions of fact. Now, I think that it is the imperative duty of a judge to hold every case before him closely in. his own hand, and when satisfied that the verdict should be one way or the other, to see that it is so, and to render judgment accordingly. And in this case, while there was some testimony upon which a jury might find. that the defendant was guilty of negligence, although it was not a'bsolutely demonstrative of negligence on its part, yet it seems to me, taking all the testimony together, the court could not do otherwise than af. firm that the decedent was himself negligent, and that his negligence contributed to the result. The motion for new trial will be overruled.
SLINEY and others.
April 80, 1884.)
(Cirouit Court, W. D. PennByZfJania.
Where one standing in confidential relations to and assuming to act for the plaintiff put another into possession of land as the plaintiff's tenant, a defendent in ejectment, as against the plaintiff, callnot question the professed agent's authority to create the tenancy.
2. SAME-OONSTRUCTIVE NOTICE OF LANDLORD'S TITLE.
Actual, exclusive, and visible possession of land by a tenant is constructive notice of his landlord's title equivalent to that afforded by the recording of a . deed.
It is DOt in the power of a teuant to destroy his landlord's possession by a secret attornment to another, and as against the landlord sllch attornment is void and of no effect.
4. SAME-QUITCLAIM-BoNA FIDE PURCHASER WITHOUT NOTICE.
A purchaser by deed of quitclaim simply is not to be regarded as a bona purchasp.r notice.
H., who entered upon the plaintiff's land as tenant, during his tenancy was induced secretly to attorn to and take a lease from S" who subsequently, with actual knOWledge of the plaintiff's title, obtained quitclaims for trifling considerations from the widow and heirs of a deceased former owner who had conveyed, by an unrecorded deed, to a party under whom the plaintiff claims. S. then conveyed an undivided one-third of the land (H. being still in possession) to K. HeZd, that inquiry of H. was incumbent upon K., and that the latter was chargeable with constructive notice of the plaintiff's title.
Ejectment. Sur motion ex parte defendants for a new trial. George C. WilBon, for plaintiff. John M. Thompson and B. b. Christy, for defendants. ACHESON, J. While it is true that the extent of J. B. Agnew's a,nthorized agency was left uncertain by the proofs, it did clearly appear that he stood in confidential relations to and represented the United States in respect to the tract of land in controversy; and the jury have found, upon ample evidence, that by his authority John G. Huddleson entered upon the land in March, 1876, as the tenant of the United States, and that he continued in possession until and at the time when George W. King purchased and took his deed from John Sliney. Now, as the authority of Agnew so to put Huddleson upon the land bas never been questioned by his principal, and it was manifestly to the interest of the United States to have a tenant in possession, I am at a loss to see by what l'ight the defendants can dispute Agnew's power to lease to Huddleson, when his tenancy is now set up by the United States. When Huddleson went upon the land, he entered (as he swears) by permission of Agnew, under the title and as the tenant of the United States. He could not otherwise enter without being a trespasser, and Agnew could not put him upon the land save as such tenant without a gross violation of his duty as attorney and agent of the government. I think, then, the tenancy of