JOHNSON v. OAKES et al. (Circuit Court, .D. Fifth Division. 19, 1895.)
MAsTEn AND SER'VANT--Rl:SKll OF EMPLOYMENT-FALLING IcICLES.
A railroad by the falling of a ·large icicle from the eaves of a locomotivE! roundl;lOuse cannot recover therefor where it appears 'that he had bee,n O\Vorking there for some time, taking engines in and Qut, and consequently had equal means With defendant for observing the icides, and knowing: the danger therefrom.
This was a petition of intervention filed by Charley Jobnson against Thomas F. Oakes and others, receivers of the Northern Pacific Railroad Company, to recover damages for personal injuries, received while in their employment. Jr., for plaintiff. L. T. Chamberlain, J. C. Bullitt, and J. L. Washburn, for defendants. ' . NELSQN,;District Judge: Upon motion of defendants this suit was referr,ed to; a master i,n chancery to hear alld report findings of, fact and COD,Glusions of, law, whereupon the master reported that on .TanuarY3,1894, and time prior thereto, plaintiff was working for defendants abouttbeir roundhouse and yard at Duluth, cleaning, and taking. out engines, and doing such other work as was ordered to do; that on the night of said day plaintiff was working under the eaves ,of the roundhouse, and, while so engaged, was.struck bya,large andlleavy icicle which had been for some time suspended from the eaves, and of its own weight fell down; tbat, defendants knew that such icicles had prior to January 3, 1894, fallen from eaves,but, carelessly and negligently omitted to have remo:ved,; that plaintiff was ignorant of any danger or risk to beincurred where he was working, and no warning was given him thereof; that plaintiff was injured solely by the negligence of defendants, and was entitled to $700 therefor as damages. To this report of the master, defendants filed exceptions, and plaintiff moves its confirmation by the court. Upon due consideration of the arguments of counsel and the testi· monj', I am of opinion that the master erred in finding that the plaintiff's injuries 'Were caused solely by the negligence of said defendants, and that said defendants are liable therefor. Tbe plaintiff had equal means with the defendants of knowing the danger from icicles falling from tbe roof of the roundhouse. It was as apparent to him as to them, il-nd as well known. Plaintiff's him in and about the roundhouse. On the night of the he took loco· motives into that building, and must have passed near and under the icicles many times before he was hurt; and, although he states in his testimony that he knew nothing about the condition of the eaves above him, other men who worked about the roundhouse knew that icicles formed on that building, and he must have known
CLAY CITY NAT. BANK V. HAI,i!lEY.
that changes in the weather· would cause them. to form, and that they were liable to fall at any time. The motion to confirm the report of the master will be deuied, and judgment will be entered for the defendants. Ordered accordingly.
CLAY CITY NAT. BANK v. HALSEY. (Circuit Court of Appeals, Sixth Circuit. OctoberS, 1895.) No. 296.
ACCOMMOD.A:rION P.APER-BURDEN OF PROOF.
The K. Co., which had obtained from the C. Bank discounts of sundrJ' notes of its own and of individuals given to it, with the bank's knowledge. for its accommodation, deposited with the bank sundry securities, as collateral to its indebtedness, and instructed the bank that such securities were pledged to secure the payment of loans made to theK. Co. or the various persons who had made the notes, and of any deficit on the present or future indebtedness. Held, that the burden was upon the bank to show that a note made by one of such persons to the order of the bank, and discounted after the deposit of the collateral, was made for the accommodation of the K. Co.; and that, upon the evidence in the case, the bank had failed to show .such fact.
Appeal from the Circuit Court of the United States for the District of Kentucky.
This is a bill in equity, filed by E. T. Halsey, as receiver of the Kentucky Union Land Company, against the Clay City Nation;ll Bank. The bill alleged that the Kentucky Union Land Company had deposited certainpromissor.\' notes and bonds with the Clay City National Bank as collateral security fol' the payment of the land company's indebtedness to the bank; .that collections made by the bank of a part of said collaterals, together with payments made directly to the bank by the land company, had, if properly applied, paid off and discharged all proper indebtedness to the bank; and that it was, therefore, entitled to have the remaining colIaterals returned, and its obligations to the bank canceled. This relief was resisted by the bank upon the ground that all of the obligations secured by pledge of the collaterals had not been paid. The decree was in favor of the complainants, and the bank has appealed.
St.·John Boyle, for appellant. Arthur Carey, for appellee. Before TAFT and LURTON, 'Circuit Judges, and SEVERENS, District Judge. After the facts as above, the opinion of the court was delivered by LURTON, Circuit Judge. The issue presented by the pleadings and assignment of error is wholly one of fact. The evidence establishes that many of the officers engaged in and about the transactions which gave rise to the controversy were officers of both corporations. The capital of the bank was small, and under the law it was prohibited from lending a sum in excess of 10 per cent. of its capital to anyone customer. To avoid this provision, the land company procured the discount of Dotes made by one or more of its officers for accommodation, the proceeds of which were placed to its credit. Among those