accrued interest iIi full, and in view of the fact that. the trustees in tbe mortgages represented by petitioners have been parties to this suit, and have hitherto taken no exceptions to'the application of surplus earnings as heretofore made by the receivers, I am clearly of the opinion that it would be the duty of the court to deny the pra.yer of the petitioners, even if we felt it to be fairly within our power under the decree to grant the same. I accOrdingly concur in the order dismissing the petition.
Co. and anot1:lerv.
others. (ELMS, Intervenor.)
E · .D. Y£'ao"!Jrl.
L. & P. By. Co. and
24, 1887 l
RAILROAD COMPANIEs-KILLING STocx-'-DoUBLE DAMAGE ACT-NORTH MISSOURI RAILROAD COMPANY.
The MiS/ilouri double damage act i/il not applicable to the successor of the North M:issouri Railroad Company.
2. COURTS.:.-FEDERAL AND STATE-CONSTRUOTION OF STATUTES-POLICE REGVLATIONS.
A local double damage ,act is a police regulation; and a decision of the state supreme court as to whether !luch a state, statute is applicable to a particular corporation, in view of its,charter, should be followed by the federal tribunals. '
Where, but tor the existence of a receivership, the l'ights of an intervenor would be determined by the laws of the state In which he resides. as interpreteq, by its supreme court. the fact that a receivership has been instituted should not be allowed to operate to increase his rights.
In Equity. Ford &: Payne, for intervenor. George J. Grover, for receivers.
BREWER, :r., (orally.) The intervening petition of James C. Elms in the Waba8h (hse was filed under the double damage act. 'The supreme, court of this state in Daniels v. St. Louis, K. O. &: N. By. Co., 62 Mo. . 43, held that that act was not applicable to the North Missouri road, or any road· which succeede<;l to its rights. Unless we disregard that decision, the exceptions to the master's report must be overruled. Counsel for the petitioner insisted very strenuously that we ought not to, follow that decision, claiming that it was not well considered, and that it was not a proper construction of the local damage act as applied to the Missouri charter. We think w.e ought to follow it. It is a construction placed by the supreme court of the state upon one of the police regulations of the state. There is no matter of contract in this case. There is certainly no natural right on the part of anyone to be paid twice for the value of property which is destroyed. This is not a question which arises between: citizens of two states) for the intervenor is a
ANDRIST tI. UNION PAC. RV. CO.
citizen of this state, and the Wabash Railroad, suctleeding to the North Missouri, is a corporation of this state. Without the receivership, it is clear that the rights of the intervenor would be determined by the laws of the state as interpreted by its supreme court; and the mere fact that a receivership has been instituted ought to give no. citizen of the state any greater rights than he would have had otherwise. Forthesereasons we think we are bound to follow the decision of the supreme court of Missouri; and in so doing the exceptions must be overruled t and the report of the master confirmed.
ANDRIST 'l1. UNlONPAC.
(Oirc'Uit Oourt, D. Colorado. February 24, 1887.)
NEGLIGENCE-CONTltIBUTORY NE6LIGENCE-mroRY TO PASSENGER ON -STARTING TRAm WITHOUT NOTICE-MAKING UP TRAIN.
While the passengersin an emigrant car, which had been side-tracked over night. were outside in the morning, the train suddenly. started,without any signal being given. Plaintiff, who was one of the passengers, jumpe«;[.onto the platform of the car next to his own, and, after waiting a moment, until a brakeman who stood in the passage-way moved to one side, he proceeded to .cross to his own car. At ,that 'moment the cars separated, having been previously uncoupled in order. to divide the train, and plaintiff fell between them, and was run over. The.,brakeman had remained silent aU the time·. that there was negligenee on the part of the company which was the proximate cause of the· injury, and that whether plaintiff was guilty of contri!:)utory negligence was a question for the jury. The jury having been instructed that, if the fault of both parties caused the injury, plaintiff could not recover, held, that a new trial should not be granted because another part of the charge defined contributory negligence as some fault or act on the part of the person injured that brought about the injury, or because the trilt1 jUdge failed to say to the jury that, if they should find that but for the negligence of plaintiff the accident would not have happened, · they must find for the defendant.
SAME-INSTRucTIONS AS TO CONTRmUTORY NEGLIGENCE.
NEW TRIAL-ABSENCE OF WITNESS.
The absence of a witness held not ground for granting a new trial, it being considered that the testimon;y which it was claimed he would give would not affect the question of contrIbutory negligence at all, and would not justify the jury in finding no negligence on the part of the defendant.
Motion for a New Trial. Stallcup &: Shafroth, for plaintiff. Teller &: Orahood, for defendant.
BREWER, J. . This was.an action for personal injuries. Plaintiff had a verdict for $3,500, and defelldant asks a new trial. The facts are these: Plaintiff, who is a native of Switzerland, came to this country in March, 1884. In May of that year he started to go as passenger on one of the trains of defendant from Kansas City to Ogden. He rode in an emigrant car. He was not familiar with railroad traveling, and could