(the door) like a bullet out of a gun, but that he did,n't know that uny Qne else was coming after the rest of the company entered the car, abd, didn't suppose there was." . ,When the evidence of the plaintiff closed, the defend!!-nt requested the court to instruct the jurythitt the plaintiff could not recover, for the reasOn that the carriage 'was gratuitous,lj.nd acceptedeupject to the conditions indorsed. :upon the back, .of the free::pass, which request was reand no exception was taken fused. There was a verdict to the charge of the court. A motion is mlj-de by the plaintiff for a new trial, and it is urged that the verdict is contrary to the evidence. The only evidence of negligence is as above stated. It is insisted that the fact that an injury happened to the plaintiff raises a presumption of a want of care, and throws upon the defendant the burden of disproving it, which was n9t done. Olapp &- Macartney, for plaintiff. Flandrau, Squires &- Outcheon, for defendant.
J. I shall not dispute the doctrine ofthe plaintiff's counsel, squarely announced and insisted upon, that the engagement of a railway company, when a carriage for hire exists, is to carry safely, and if an accident occurs, and a passenger is injured thereby, proof of the accident makes out a prirna.jacie case against! the carrier; but here no contract existed between the plaintiff and the defendant, and the carriage was a gratuity. The duty imposed upon the defendant was to exercise a high degree of care for the personal safety of the plaintiff, so that a jury, in considering the proof of the act which caused the injury to the plaintiff, must also examine into and consider, in connection with the proof of the act, all the surrounding circumstances, and determine whether it was negligence. It is immaterial from which side the circumstances are detailed in the evidence. There must be reasonable proof of negligence upon the part of the defendant, and it is the province of the jury to determine its suftlciency. The r}lle laid down by the United States supreme court, and cited by counsel for plaintiff, applies to a case of carriage for hire; Proof of the n1ere fact that the plaintiff was injured on the train by phe door being shut against him, without more, does not amount to negligence, if the carriage is gratuitous. Motion for new trial denied.
NEW HAMPSHIRE LAND Co. v. TILTON and others.
(Oircuit Court, D. New Hamp8nVr6. February 8, 1887.)
OosTs-TAXATION-l'LEA AMENDED BY ORDER OF COURT-COST OF SURVEYS OIl' LAND-COMPLIANCE WITH ORDER. .
Where, in an action at law to recover the possession of certain lands, the defendant is ordered by the court to make his plea more certain, and, in order to enable defendant to file a proper plea in accordance with such order, it becomes necessary for him to make surveys and plans, the expense of such surveys and plans is not apart of defendant's taxable costs.
NEW HAMPSHIRE LAND CO. V. TILTON.
Streeter, for plaintiff. llmnieh and Bingham. & Mitchell. for defendants.
COI.T,J. The defendants ask to have allowed in their taxed costs against the plaintiff the expense of certain surveys and plans made and used by them in the preparation and trial of the case. The plaintiff, by its writ of entry filed at the May term, 1882, demanded possession of a large tract ofland, about 50,000 acres, situated in Grafton county, New Hampshire. The'declaration described the land claimed. The defendants in their plea filed August 24, 1882, disclaimed all lands in the plaintiff's declaration described, except certain lots. At the next term of court the plaintiff moved that defendants' plea be rejected on thegrounds of uncertainty and insufficiency. Upan this motion the plaintiff claimed that defendants' plea did not tender an issue npon which a trial of a real action cQuid 'be had, because the lots claimed by defendants had never been surveyed and marked upon the ground, and that, therefore, the lines of said lots could not be ascertained from the description in the plea. The defendants admitted that the lots claimed by them had never been actually surveyed and marked upon the ground. Upon hearing the parties, the presiding judge. against the defendants' objection, ordered that part of the plea describing the lots claimed by defendants rejected, and that the ,defendants furnish a plea describing the lines of the lots claimed by them by fixeo, definite, and visible monuments upon the ground. To comply with this order, the defendants were obliged to make surveys, and, after making them, they filed an amendment to their plea, setting out by definite boundaries these lots. The surveys were made to perfect the defendants' pleading, and to furnish a plea in accordance' with the order of the court. ' Under ,these circumstances, I do not see how the defendants can recover for these expenses as a part of their taxable costs. They were ordered by the court to make their plea more certain. In order tQ enable them to file a proper plea, it became necessary for them to make the surveys. This was an' expense incidental and necessary to their defense. It was not an expense incurred under any rule or practice of this court, or for the benefit of both parties. By section 914, Rev.' St., the practice, pleadings, forms, and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, forms, and modes of proceeding of the courts of the state within which sllch circuit or district courts are held. Under the practice of New Hampshire, it would seem' that the expenses of such surveys are not allowed as a part of the taxable costs. Ela v. Knox. 46 N. H. 16. But, independently of the state practice, I find nothing in the federal statutes, or the practice of this court, that would seem to warrant the al10wanceofsuch an expense as a part of the taxable costs. The defendants urge that the allowance is within the discretion of the court, and that, as the expense was made neCessary by the order at' the court, it 13
.}'EDERAL REPORTER·... ' .
properly taxable as part of the costs, or that, at least, the plaintiff should pay one-half the aIDount. We are not dealing with a cause in equity, but with an action at law; and, where an expense of this character is made necessary in order to file a proper .plea in an action at law, I know of no rule or practice which allows it to be included in the taxable costs. Motion denied.
w: D. Pe'fl/MJilfJania.
February 4, 188701
Where, on the application of S. as the declared beneficiary, be also paying the premiums, a policy of insurance was issued upon the life of B., the sum insured to be paid to the" assured, " held, that S. was the assured and promisee. and an action on the policyby the personal representative of B. was not maintainable. The fact that after the date of the policy an assignment thereof by B. to S. was indorsed thereon, without the concurrence of the insurance company, an immaterial circumstance, neither changing the contract relations of the parties, nor importing their mutual understanding of their contract.
SAME-AsSIGN'MENT-'CONSENT OP COMPANY.
At Law. Sur demurrer to plaintiff's declaration. B. F. Hughe8, for plaintiff. W. 8. Purviance, for defendant and demurrer. ACHESON, J. This suit is upon a policy of insurance on the life of Beckwith S.Brockway, issued upon the written proposal of DanielF. Seybert, setting forth the latter's desire to effect the proposed insurance, and that he ha.d an interest to the full amount thereof in the life of said Brockway. To the inquiry, "for. whose benefit the assurance is proposed," the written answer was, "Daniel F. Seybert." The original annual premium and the second annual premium, the only ones ever paid, were both paid by Seybert. By the terms of the policy the defendant company promises and agrees, "to and with the said assured," to pay the sum insured "to the said aSsured, his executors, administrators, or assigns," etc. The proposal and answers are expressly made part of the in the plaintiff's declaration. policy, and all are embodied in The ·demurrer raises the question whether the right of action is in the plaintiff, the admipistrator of Beckwith S. Brockway, deceased, or in Daniel F. Seybert. The question is to be solved by ascertaining the person meant by the term "assured," as the same is used in the policy. Now, as already stated, and as clearly appears on the face of the papers constituting the contract,Daniel F. Seybert was the applicant for the policy, in ,his proposal therefor claimed to have an interest in Brockway's life to the entire amount insured, was the declared beneficiary, and paid the premiums. In the absence, then, of anything indicating a contrary intention, the conclusion is irresistible that Seybert was the as-