:fl.nal ,8ubmissionof.the case .to the jp.ry, or to the court, tiff before where the trial is by th.e court. ' *" Code Civ. § 397. The supreme court of that state Jil.ave uniformly held that under this section the plaintiff may dismiss his action at any time before its final submission to the jury or court. McVey v. Burns, 14 Kan. Weaver, 20Kan. 294; Amos v, Association, 21 Kan. unnecessary. to what the rule. is in the abo sence of a statute, though we may remark that no case has been do not one can be found......,which questions the right of' the: plaintiff to dismiss his action at the stage at which the pla,intiff in error asked leave to dismiss its suit. The lndgment of the circuit co'urt is reversed, and the cause is remand,ed for further proceedings therein according to law.
REILLY v. OAMPBELL et al.
(Circuit Court of Appeals, Second Circuit.
MASTER AND SERVANT-NEGLIGENCE-DEFECTIV1'l ApPLIANCES-EvIDENCE.
for Inj1U'les suffered by him, while in defendant's· em· ploy, ,through the breakJ,ng of the handle of a ladle In which he and another' were carrying molten metal. The ladle had been used for the same/purpOse for 15 years,but there wa.!l iio evidence as to Its condition .at tAAi;tlme.of the Held, that it was proper to direct a verdict in the abs.ence of any showing that there was In the ladle Rn.obvloull ijefect, or one which defendant would have discovered by the exercise ot due care.
In ijf,rqr to the Circuit Court of the United States for the South· ern Distric:tof:New York. Action'by Frank ReHlY igainst Andrew J. Campbell and William H. Van Tassel. The trial court directed a verdict for defendants, and plaintiff. brings error. Judgment· affirmed. L. E.Ohittenden.and John C. Robinson, for plaintiff in error. Hamilton. Wallis, for defendants iii error. . LACOMBE, and SHIPMAN, Circuit Judges. WALLACE; Circuit Judge. The was for personal injuries received· by the plaintiff through the alleged negligence' of the defendants.. It appeared upon tile trial that the plaintiff, while working as a laborer for the defendants, who were ironm.olders, was severel,. :injured by reason of the breaking of the handle of a ladle containibgmolten iron which, in the course of his duties, he was assistiqg to carry from one. part of the defendants' premises tqanother; "'l'he only evidence as to the circumstances of the accident was that, while the plaintiff and two other men were carrying the ladle in the customary way, one of the handles sud· denlybroke1 and the molten metal was spilled upon the plaintiff. No evidence was offered in respect tO,the condition of the ladle at the time of,' or 'previous to, the accident, except proof that the ladle
REILLY 11. CAMPBELL.
was made of sheet iron, lined with fire clay, had handles made of wrought iron fastened to a wrought iron band which passed around it, and had been in use 15 years. No evidence was. offered for the purpose of showing that the appliance was defective or unsafe. The case for the plaintiff was rested upon the theory that negligence was to be presumed against the defendants from the circumstances of the accident. The trial judge ruled that there was no evidence of negligence, and accordingly directed a verdict for the defendants. If an employer is liable to an employe, hurt in the course of his duties, whenever it appears that the injury was caused by a defective appliance provided by the employer for the duty, the ruling at the trial was erroneous. The breaking of the ladle while it was being used in the customary way, and for the purpose fot' which it was provided, could only: be accounted for upon the inference that it was infirm. Having been used for many years in the same way, presumably it was originally sufficient. Whethel' it had become impaired by age and wear and tear, or by BOme other cause, was, upon the evidence, merely matter of conjecture, and is an immaterial consideration if the only question were whether it was defective at the time. But an employer does not undertake as an insurer with his employes for the safety of his appliances. His obligation towards them is to exercise reasonable and proper care and diligence in that behalf. Hard v. Railroad Co., 32 Vt. 478; Railroad Co. v. Barber, 5 Ohio St. 541; Railroad CO. Y. Webb, 12 Ohio St. 475; Railroad Co. v. Love, 10 Ind. 554; Warner v. Railroad Co., 39 N. Y. 468; Flynn v. Beebe, 98 Mass. 575; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433. In the absence of any evidence sufficient to authorize the jury to find that the defendants had omitted to exercise reasonable care and diligence in permitting the ladle to be used by which the plaintiff was injured, the plaintiff was not entitled to recover, and it was the duty of the trial judge to direct a verdict accordingly. For all that appeared, it was in apparently suitable condition until the moment when it gave out. In The France, (recently decided in this court,) 59 Fed. 479, we had occasion to consider a. case quite similar in its legal aspects to the present. In the opinion we said:
"The presumption of negligence is often raised by the circumstances of an accident; and it may be a legitimate presumption that an appliance which gives out while it is being used for its proper purpose in a careful manner is defective or unfit. How far that presumption may go In an action by an employe against an employer, to shift the burden of proof from the former to the latter, must depend upon the circumstances of the particular case. The mere fact that the appliance is shown to have been defective is not enough to do so; it must appear that the defect was an obvious one, or such as to be discoverable by the exercise of reasonable care."
These observations are applicable to the present case. As it did not appear upon the trial that the defect was an obvious one, or discoverable by the exercise of ordinary care, we conclude there was no error in the ruling complained of, and the judgment should be affirmed.
SHIEL v. PATRIOK. (OlrcuIt Court of Appeals, Second Circuit.
February 27, 1894.)
The right of action which vests in the shareholder of a dissolved corporation to reCover moneys of the corporation which were wrongfully diverted from it by another while it was a going concern is purely equitable, for the assets of a dissolved corporation constitute a trust fund for shareholders and creditors; . and therefore such right will not support an attachment under Code Civ. Proc. N. Y. § 635, which authorizes attachments in actions "to recover a sum of money only," but does not extend to those of an equitabie nature.
In Errorto the Circuit Court of the United States for the SOuthern District of New York. Thiswas an action by Dennis R. Shiel against Algernon S. Patrick, in which there was judgment for defendant below, and plaintiff brings error. Judgment affirmed. Martin J. Keogh, for plaintiff in error. Geo.W. Wickersham, for defendant in error. Before WALLAOE and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. This isa writ of error by the plaintiff in the court below to review an order vacating a writ of attachment,issued by the supreme court of the state of New York prior to the removal of the suit. It is conceded that the order was practically)1. final decision of the action, because, by vacating the attachment, which was the only process by which the suit was commence(f, tll.e court lost jurisdiction, the defendant having appeared only, for, the special purpose of moving tovacate the writ. The decisionofthe circuit judge proceeded upon the ground that the action, being one for equitable relief, was not one in. which the state court was authorized to issue an attachment. It is entirely clear that the action 1.s one for equitable relief. The cause of action disclosed in. theaflida,its upon which the attachment was obtained follows: T.he plaintiff is the owner of certain shares is in brief of stock i,na corporation which has been wound up and dissolved by a decree otan English chancery court; that, while the corporation was a. going concern, the defendant, conspiring with another person, 'defrauded the corporation out of certain sums of money, and tliereby caused it to become insolvent; that, in consequence of the .acts of the defendant, the shares of stock owned by the plaintiff and the other shareholders in the corporation are much less valuable than they would have been otherwise, and the plaintiff brings the action for .himself and all other shareholders who may choose to come in to recover the amount of· the moneys of the corporation thus wrongfully diverted from it by the defendant. The affldavits do not disclose when the plaintiff acquired his shares of stock, nor how mallY shares he owns, and, so far as appears, all the wrongs complained of were committed by the defend-