O'NEILL ".CHICAGO & N. W. RY:. CO.
servant of the negligent conductor. It results that the demurrer to the first paragraph of the must be sustained. I think the second paragraph of the complaint is sufficient. It contains all the formal allegations necessary to constitute a good cause of action. other grounds of negligence it avers that Lamb was nota careful, skillful, and attentive conductor for a passenger train, which was known to defendant, and that the death of plaintiff's intestate was caused by the negligence of the conductor. While the paragraph is,not very artistically drawn, I think it contains enough facts to withstand a demurrer. The demurrer to this paragraph is therefore overruled.,
& N. W. Ry. Co.
(Circuit Court, D. Iowa. May, 1881.)
MASTER AND SERVANT-PERSONAL INJURIES-NEGLIGENCE.
A carpenter in a railroad yard was standing upon a ladder which leaned against the car he was repairing, when a locomotive came against the train, threw him tc> the ground, and injured him. ,The fireman saw him in ample time to notify the engineer, but said nothing until the locomotive was about a car-length away, when he cried out" Whoa I" Thereupon the engineer reversed the engine, and almost stopped; but, receiving a signal to proceed from the switchman, who did not see the carpenter, he again turned on steam. Beld that, on this state of facts, the question whether it was the fireman's duty to specifically notify the engineer that .a man was in danger was one of fact for the jury.
At Law. Action by John M. O'Neill against the Chicago & NorthRailway Company to recover damages for personal injuries. A verdict haVing been returned for plaintiff, the case was heard on motion for a new trial. Granted . . Thissuit\Vas brought by plaintiff to recover damages on account of personal injt;iries, caused, as alleged, by the negligence of the servants Of the defendant. The plaintiff was in the employ of the defendant as a car carpenter, and was directed, in the course of such employment, to repair a car which was standing upon one of the numerous tracks in the defendant's yard at Clinton, Iowa. He was directed to place certain lamp brackets upon said ca'r, and in order to do so it was necessary for him to place a ladder against the car, and to stand on the same while doing the work. While engaged in this duty, standing upon the ladder, a 10comoLive came in upon the track, and collided with the line of cars upon which plaintiff was at work, with such force as to throw him to the ground and injure him. The locomotive was in charge of an engineer, and was attended by a fireman, named Riggs, and by a switchman. The fireman, Riggs, saw plaintiff in his perilous position in ample time to inform the engineer of his peril, but gave no notice, and made no effdi't to stop the engine or prevent the accident, except as shown in' the tenth instruction to the jury, hereinafter quoted. The case was tried',hef'Dre It jury I and there was a verdict for plaintiff. The ino-
'tidnfol'ti6wtrial is utged upon' the ground that the court erred in charging the jury., The tenth instruction given to the jury is as ,«riO) Theevidence'tendii to show that the fireman, Riggs, who was with engine, couldseElplaintifr at work on the car, Bnd that he did, eeehim fot some distance, ,and in' ,ample time toha'Vejnformed the engi,neel';, was,Wit})in about one car-length oUhe sta1ld,iJ;lgcars. and that he thell.,called out' W,hoal' ,to the engineer, who re,vel'll,8d,'bis engiJ;le, and, nearly stopped the tram, ,when the switchman, who dId n6tseeplaintlff. to, mov60n, when he again put on steam, ahd' moved up against the standing car,' thuscausihg the injury. If you fltJd tbese facts, ,the court instrllcts you that It was the duty of the fireman to notify the engineer that there was a man 011 the side of the car and in danger, and to give such notice ill time to enable the engineer to avoid the collision; and, if so notified, it would have been the duty of the engineer to disregard the signal of the switchman to move on. In such a case he would be bound to presume that the signal had been given in ignorance of the danger. and he would be bound to ,act upon his knowledge of the danger, upon any information he had received from the fireman, or from any other 80urce, that there wlloS8man in danger."
W. A. Foster and John J. Mullaney, for plaintiff. Hubbard ct Clark, for defendant.
McCRARY, Circuit Judge. I am inclined to the opinion that the tenth instruction given to the jury was erroneous; in that it did not leave it for thejury to say;Whether, under the circumstances, it was the duty of the fireman (Riggs) to have given to the engineer more definite and explicit warning concerning the plaintiff's peril. It is doubtful whether the circumstances of this case bring it within the rule that, the facts being established, the court may determine the question of negligence as a questionot' law. It probably belongs to that other class in which, although the facts be undisputed, different minds might honestly draw difl'erent conclusions therefrom; and, if so, the question is for the jury. As the verdict is for less than $5,000, and therefore a judgment rendered thereon could not be reviewed upon writ of error by the supreme court. I am constrained to resolve my doubts in favor of a new trial. The motion is sustained. Railroad 00. v. McElwee, 67Pa. St. 315; Railroad 00. v. Sto1£t,17 WalI; 659; Railroad 00. v. Van Steinberg, 17 Mich. 99;
GilleH[J'i.6 v. Oity of Newburgh, 54 N. Y. 468; Oity oj Rockford v. HiJ,(U. brand, 61 Ill. 155.
FLOWER (Circuit Court,
l!V. D. lZT.inoiB.
At a melltinll' of oreditors to effeot aoomposition in bankruptcy. plalntUf. owning notes seoured and unseoured, voted for the settlement on the latter. and did not vote on the former, and the seourities were not in any way considered: subsequently he, ponverted them into money, but they proved insuffioient to pay the debt. Held that, if the debtor desired to have the composition operate upon the secured