HENRY V. BOND.
Large, 196; Rev. St. § 636,) the circuit court may now affirm, modify, or reverse admiralty appeals. Upon reviews by writ of error to the district court the circuit court is to re-examine and reverse or affirm the judgment, (Rev. St. § 636;) and by section 636 may also modify or direct such judgment to be rendered by the district court as the justice of the case may require. The latter section is not to be construed as intended to make an unnecessary and inappropriate innovation upon the existing practice. The present judgment seems to have been entered upon the theory that the record has been removed out of the district court, and is now in this court. This is a misapprehension. Upon the remO-val of a cause by a writ of error, the record, the fund, the stipulations, and the res remain in the district court, and this court acts upon an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party. Rev. St. § 907. The right of the sureties for the claimant to have a judgment, to which, upon payment of their stipulation, they may be entitled to become subrogated, entered by the proper courts, and in the proper form, is a matter of substance. It is by no means clear that the party cauE\ing an execution to be levied upon the judgment as it now stands would be protected. The motion is therefore granted.
Oourt. S. D. Mississippi, ll'. D. January Term, If:!88.)
MASTER AND SERVANT-RISKS OF EMPLOYMENT-CONTRIllUTORY NEGLIGENCE.
Plaintiff bad been for five years foreman in cbarge of tbe switcb-engine in the yard of the defendant railroad. For two years previous to the injury com· plained of the railroad had used cars with what are called "aprons" on tbe sides and ends of fiat or platform cars. These aprO:l cars have a plank of some inches wide projecting over the ends and sides so that wben the ends come together the floors meet. or nearly so, and to enable them to be coupled a space is left over the coupling appliance instead of on the sides. The coupling is not so convenient, and, when done by getting under the cars, is at· tended with more risk than in ordinary cars. On the day of the injury com· plained of,in obedience to the orders of the yard-master. plaintiff proceeded, after dark, to shift the cars. The first car approached was one of those apron cars. His lantern not giving a good light he did not distinguish this from an ordinary flat car. and was standing on the apron of the engine. as he usually did in coupling an ordinary flat car, when he was struck by the apron and severely injured. Held, that it was his duty to use all necessary caution to ascertain the kind of car he was coupling, and, having failed to do so, he could not recover.!
At Law. In action for damages. Action by appellant, William Henry, employe of Vicksburg & Meridian Railroad, to recover for injuries received while in the employ of railroad against F. S. Bond, receiver.
See note at end of case.
'. Wade Young. for petitioner. Birchett. and Gilland. for receiver.
The questions. now presented for decision arise upon the petition of William Henry v.F. S. Bond, Receiver, answer and proof, from which the following facts appear: The petitioner was, and had been for five years, the foreman in oharge of the switch-engine in the yard of said railroad in Vicksburg, in moving cars, making up trains, etc. Fortwo years previous to May. 13,1887 ,said receiver, by his employes, had used on said railroad and the railroads connected with it, cars with what are called "aprons " on the sides and ends of flat or platform cars, used mostly in construction trains, for moving earth and other materials, but when not soused, were used for the transportation oflumber, cotton, and other freight transported on theo.rdinary flat cars, as the latter cars are used. These "apron cars." as they are called, have a plank of some inches wide projecting over the ends and sides of the car, so that when the cars come together the floors meet, or nearly so, but, to enable them to be coupled, a space is left over the coupling appliance, instead ofon the sides, as in ordinary flat cars. They may also be coupled by getting under them, The coupling is not so convenient, and is, when getting under the cars, attended by some more risk than in ordinary flat cars. On the 13th of May, 1887, the freight train was one hour late in arriving in Vicksburg. The yard-master, under whose orders the petitioner was acting, directed the petitioner to shift the cars in the train so as to prepare those going over the river to the Vicksburg, Shreveport & Pacific Railroad, to move soon in the morning. To perform this service, the petitioner proceeded, after dark, to shift the cars in the train, and proceeded with the switch-engine to the train. The first car approached was one of these apron cars. His lantern not giving a good light, he did not distinguish this car from an ordinary flat car, and was standing upon the apron of . the engine, ashe usually does in coupling to an ordinary flat car, when he struck the apron or plank, and was severely injured, and it is to recover for these injuries he filed his petition, alleging that it was through the negligence and wrongful conduct of the defendant and his employes that he received these injuries. Whether this is so or not, is the question to be determined. The service in which the petitioner was engaged is recognized as a very' dangerous one, and for which extra compensation is demanded and paid. Those who engage in it are presumed to know the risk and to assume it. They are also presumed to know that cars of various construction and mode of coupling, will pass over the road, and be coupled and handled by them, and that it will be their duty to undel'stand the risk, and take upon themselves the responsibility of performing this service, and taking care of themselves in its performance. The petitioner knew that these cars were1?eing used on these trains, and also knew the mode and appliances for their being coupled with each other, or with the engine, or with other cars. It was his dnty to use all necessary caution to asceroccasion was to be tain the kind of car with which the coupling on
.iENRY V. BOND.
made. This, I am of opinion, the proof shows he failed to do, hence the injuries which he received, which are to beregrettedj but I cannot find from the proof that the receiver or his employes are in any way responsible for it. If the petitioner supposed these cars were too dangerous to be used on these trains, he should have so notified the receiver, or other proper officer of the road, and if they were continued, should have left the employment; but no such complaint is shown. Even when the machinery and appliances are defective, if the defect is known to the employe, and he continues in the employment, and takel:l the risk, and especially when he makes no complaint, he cannot recover for injuries received in consequence of such defect; but in this case no defect is shown or complained of. The decided cases referred to by the learned counsel for the petitioner, when examined, are found not to be applicable to the facts in this case. The questions here presented under similar circumstances have often been before the courts, state and federal, and, so far as I am informed, have been -decided against the claim of the employe, and was perhaps never more exhaustively considered than by Judge COOLEY in the case of the Railroad v. Smithson, 45 Mich. 212, 7 N. W. Rep. 791, since considered the settled rule on this question. The result is that the prayer of the petitioner must be denied, and petition dismissed. .
NOTE. MASTER AN:o SERVANT-RISKS Oll'.EMPLOYMENT. As between a railroad company and its employes, the company is required to exercise only reasonable and ordinary care and diligence in the selection of machinery and instrumentalities for the operation of its railroad. It is not necessarily negligent in the use of defective machinery, which is not obviously defective. Railroad Co. v. Wagner, (Kan.) 7 Pac. Rep. 204; Railroad Co. v. Ledbetter, (Kan.) 8 Pac. Rep. 411. An employer is not bound to furnish the safest machinery, nor to provide the safest means for its operation, in order to escape liability for injunes resulting from its use. If the machinery be of an ordinary character, and such as, with reasonable care, can be used with no more danger than is reasonably incident to the business, it is aU that can be required. Rummell v.Dillworth, (Pa.) 2 Atl. Rep. 855 and note. The fact that cars, which a brakeman is required to connect, have draW-heads different in make, style, and construction, which fact contributes to an injury received b1 the brakeman, IS held not to oonstitute negligence on the part of the company. The Increased risk arising from the use of cars with drawheads of different .makes.,is one which the employe on entering. the service. Woodworth v. Railway lJo., 18 Fed. Rep. 282; Kelly v. Railroad Co., (WIS.) 23 N. W. Rep. 890. In general, as to the rules which determine the risks assumed by a servant 011 service of h!s employer.l.,. what have been held to be and risks, see HeWItt v. Railroad Co., (Mwh.) 34 N. vv. Rep. 65t and note; Brown v. Railroad Co., 17.N. W. Rep. 282; Rail· (Iowa,) 21 N. W. Rep. 193; Piquegno v. Railroad \)0., road <:'0. v. Bradford, (Tex.) 2 S.W. Rep. 595; Scott v: Railroad Co., (Or.) 13 Pac. Rep. 98; Hlckeyv. Taafre,(N. Y.) 12N. E. Rep. 286; Wuotillav. Lumber Co., (Minn.) 33N. W. Rep. 551.
et al. "'.
(Circuit Cowrt, D. Oregon. February 29,1888.)
PRINCIPAL AND SURETY-SURETY OR GUARANTOR-BOND TO SECURE AnvANCES.
A person who executes a bond with another as his surety, conditioned for the payment of moneys advanced to the principal by the obligee therein, is a surety, and not a mere guarantor, and is not entitled to notice of the acceptance of the bond by the obligee. . .
SAME-ALTERATION OF INSTRUMENT--PROCURING ATTESTATION TO SIGNATURE OF SURETY.
When a person executes a bond as surety, and leaves it with his principal for delivery to the obligee, and before doing so the former procures a person to attest the signature of the surety, who is not authorized to do so, such attestation is not an alteration of the instrument that impairs or affects its value as an instrument of evidence in the hands of the obligee, because it was made before delivery.l (Syllabu8 by the Gourt.)
At Law. On motion for new trial. L. B. 000;, for plaintiffs. Edward B. Watson, for defendant.
DEADY, J. On December 23, 1886, the plaintiffs, citizens of the state of Illinois, and doing business in Chicago, under the firm name of T. W. Hall & Co., commenced this action against the defendant, George of ;Hans Weaver, deceased, Weaver, a citizen of Oregon, to recover the sum of $8,503.09, with interest from said date, as and for IDoney theretofore advance,d to W..F. Owens on the security of the bond of said Han!' Weaver. On the trial it was admitted' that since the comtuencement of the action the plaintiffs had received from parties to said bond the sum of $3,663.10 on said demand, and the jury found a verdict for the plaintiffs for the remainder, $4,839.99, for which sum, with $171.20 costs and disbursements, the plaintiffs had judgment. . The defendant now moves for a new trial, and it will be necessary to a proper understanding of the matter to make a brief statement of the case. It is alleged in the complaintthat on January 7, 1886, the plaintiffs and W. F. Owens entered into an agreement whereby Owens was to purchase wool in Oregon, and consign the same to the plaintiffs for sale at Chicago, and on the receipt of a consignment of wool or an agreement to consign, together with a note equal to 10 cents a pound of said wool, the plaintiffs were to advance money to Owens on his drafts, to enable him to purchase wool; that in consideration of said undertaking on the part of the plaintiffs, said Owens as principal, and Robert Phipps, Noah Cornutt, and Hans Weaver as sureties, all of the county of Douglas and
16 Pac. Rep. 79B, and note.
IOn the subject of the alteration of written instruments. see Da,is v. Eppler, (Kan.)