,one' or the other. of several defendants may perhaps be liable, to which' claim distinct and separate defenses are interposed, and therefore the various decisions which have been made by the supreille conrtupon such a state of facts are not applicable to this case. It is a case in which the borough of Danbury is made a defendant in an action of contract without any legal claim against it insuch action, according to the testimony of the plaintiff, and of each of the defendants, so far as they have testified, and a case in which the corporation is in fact a sham defendant, though not made so for fraudulent purposes. Under the suggestions contained in Plymouth Gold Min. Co. v. Amador Co., 118 U. 264, 6 Sup. Ct. Rep. 1034, I am of opinion that the motion to remand should be denied upon the testimony as now given. If it should hereafter appear that the finding, which is based upon the testimony of the plaintiff, is unwarranted, and that there is any ground for making the corporation a defendant, the cause can be remanded under the fifth section of the act of March 3, 1875.
CENTRAL TRUST Co. OF NEW YORK'll. WABASH, ST. L. & P. Ry. Co. (Intervening Petition of JUSTUS.) ..
Ooure, B. D. MiBBOwri, B. D. June 22,1887.)
EQUlTY-FlNDINGS OF. MASTER-(lOlJFLICTING TESTIMONY.
Where the findings of a IUaster that a certaiIi train was moving, w'ithin the limits of a city, at an unlawful rate of speed, that the train-men were not exercising proper vigilance. and that a mishap to a boy occurred in a certain way, are supported by testimonY,the findings will not be interfered with by the court, although tlie testimonY,isconfiicting. A bOY six years old, struck by. train, is not chargeable with contributory . negligence.
Rassieur & 'l'ijfany, for intervenor. Goo. S. Grooer and H. S. Priest, for defendant.
, THAYER, J. t (orally.) The intervenibgpetition'of Richard Justus, 'in the case of the Central Trust CornpaI,l,y against the Wabash, St. Louis, & Pacific Railway Company, is a clai1D for personal injuries. The claim is filed in 'behalf of a boy about six years old, whose foot was crushed in such a way as to necessitate amputation, by.a moving freight train on the crossing of Gano avenue, in the city of St. the Wabash Railroad, Louis, on the third of July last. The intervening petition alleges that the train was moving at an excesSive rate <,>f speed; that the bell as it approached the crossing was not sounded; that the train-men (e';pecially the engineer and fireman) failed to kel=lP a vigilant outlook, as the ordinances of the city require. The master. has found that the train wM
CENTRAL TRUST CO. V. WABASH, ST. L. &; P. RY. CO.
.moving at an excessive rate of speed, and that the train-men failed to keep such outlook as' the ordinances of the city require at such places. He has accordingly recolnmended an allowance of the claim in the sum of $4,500. Exceptions are taken to the finding ofthe master as last stated. I have read all the. testimony in the case taken before the master carefully, and while there is a great conflict in the same,as is usual in such cases, yet there is ample testimony in the record to support thefincting that the freight train was· moving at an unlawful rate of speed, and that the train-men were not exercising such vigilance as the law requires of them in stlchcases. If the finding of the master was the finding of a jury, the court could not rightfully set the finding aside, and it will not do so in this case. The master also found that this boy was strock by the cow-cateher of the engine, or by some portion of the engine, and in that way received the injuries complained of. This finding is also objected to. It is insisted that the· boy was standing by the side of the track, and that, after the engine passed him, he attempted to seize hold of some part of the .train,and clamber onto the train, and in that way his foot waS drawn under the wheel, and was crushed. It is sufficient to say that among .all the witnesses who testified in the case there was only one witness who claimed to have been an eye-witness of the accident. That witness testified, in substance, that the boy was standing on or near the crossing, looking:down the traqk at some boys who were moving down the track in the same direction that the train was moving, and that the cow-catcher of the engine, or some part of the engine, struck' him, and occasioned the injury· The master, for reasons that were no doubt satisfactory to himself, saw fit to credit the testimony of such eye-witness, and found that the injury was sustained in the manner by her explained. There is nothillg in the record that will warrant the court in overruling the finding of the master on that issue. It should stand as the verdict of a jury, and it will be suffered to so stand. The boy being only six years old, no negligence can be imputed to him. ·.Therefore the issue of contributory negligence is not in the case. The result is that the finding of the master will be confirmed, and the claim will be allowed as recommended by him.
OF NEW YORK
Ry. Co. and others.
and others 11. WABASH, ST. L. &: P. (In re Intervening Petition of HOYLE.)
(Oircuit (Jowrt, E. D. Mi88ouri. E. D. June 22,1887.)
C4lIJUERll-1'RANllPORTATION BEYOND LINE.
The initial carrier of personal baggage over connecting lines of railroad is for an injury to the baggage at 8 point beyond the terminus of its llwn line. unless it has assumed such liability by express agreement, or unless there is some arrangement in the nature of 8 partnership between it and the connecting carriers; and 8 finding that no such express agreelllent is shown