BALTIMORE & O. R. CO. V. ANDERSON.
Of course, without some lndependent proof of the existence of the secret, understanding at the time of the making of the deed, the mere direction to the clerk to take an inventory; and the receipt of the key to the store, would have been imma,terial. But immediately following up the delivery of the deed with acts of possession, taken in connection with other acts, conduct, and declarations preceding and simultaneous with the execution of the deed, were circumstances which, taken together, might justify the inference of the required secret understanding. And, furthermore, without such S('cret understandinghaving been followed up by an act evidencing possession, the defense against the claim of the interpleader would not have been made out. The evidence objected to was therefore competent. The judgments of the court of appeals and of the United States court for the Northern district in the Indian Territory are affirmed.
BALTIMORE & O. R. CO. v. ANDERSON. (Circuit Court of Appeals, Sixth Circuit. No. 546. February 8, 1898.)
RAILROAD CROSSING STREET-RIGHTS OF PUBLIC THEREON.
Where a railroad Intersects a street at right angles, the public have a right to use the tracks as a means of crossing the street from one sidewalk to 'the other, using due care not to be in the way of trains. The of one on a railroad track at a crossing of a public highway, In front of a moving train, will not relieve the company from liability if, by due care, the engineerltnd fireman might have stopped the train, and thus avoided' fujuring him, after they saw, or ought to have seen, his dangerous position. Plaintiff, attempting to cross a street on defendant's track, in front of an approaching train, caught his foot in a dangerous hole in the wooden wl;l!ch formed the intersection of the track and street, and was Injured by the train. Held, that the court properly left to the jury the question whether defendant was negligent in allowing the defect In the platform, and whether the proximate cause of the accident was plaintiff's negligence In crossing in front of the train, or his being caught in the hole, and directing a verdict for plaintiff only in case defendanfs,negllgence was the cause of the defect in the platform, and the defect was the proximate cause of the accident.
NEGLIGENCE OF ONE' ON RAILROAD TRACK-LIABILITY OF COMPANY.
PROXIMATE CAUSE OF INJURy-CONTRIBUTORY NEGLIGE,NCE-QUESTIONS FOR JURY.
In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.
This is a writ of error from the judgment of the circuit court for the Northern district of Ohio. The action was for damages for personal injury. The plaintiff was a newsboy in the town of North Baltimore, Ohio. The accldent occurred In May, 1892, about 4 o'clock in the afternoon. The plaintiff, then a boy of about 12 years of age, had obtained his newspapers at the' post office, on the north side of the intersection (jf the main street of North Baltimore and the defendant's railway tracks. At this point the railway tracks run east and west, and the malli street runs north and south. The station of the rail· way company lies east of the intersection. The course of the plaintitr was from the post office, on the east side of the main street, south across the tracks. About the tiIUe that he left the post office, an engine, with a heavy freight train.
w.as,pulling .out of the switch in front of tbe .railway station, and was .about 'to cross 'the maiIi street. '.rhe gates were' down. '!'he plliint1ff, with his newspapers, ran down on the. east side of the'street until he came within a tew feet ot the track, When he attempted to C!?OSS the street by Ule wood platform, whIch tOl'Il).ed the Intersection between the railroad tracks and the street. He seems to have proceeded diagonally across the platform. There was a COllfllct in the evidence as to how near to the street the locomotive of the freight train had come at the time the boy. attempted to cross tile track. 'Vhen he reached the south rail of the track, about the .mlddle of the street, his foot was caught in the opening between the platform and the rail. The evidence for the plaintiff tended to show that this was larger than it should have been; that the wood of the platform opposite the rail had been spIlt off, making a hole a foot long, and between three find' foUr inches in width, at the end of which there was a spike so situate that it caught the plaintiff's foot. and held it fast. The plaintiff introduced evidence to show that his crossing was so far in adv!tnce of the train that, had either the engineer or the fireman been looking Ollt"the train might have been stopped after the boy was caught. ill time to save him. The evidence of the defendant tended to show that the boy did not start across the track until the pilot or cow catcher of the engine had reached the sidewalk of the street, and that what he attempted to do really was to run around the front of the engine. The contention for the defendant was that the road was muddy, and that the boy was merely using the rail· way tracI.;: as a means of crossing the muddy street, ,and that the public had no right to use the track for this purpose, and were obliged to confine their use of it to crossing the track at rigllt angles. Against the objection of defendant. evidence was introduced by plaintiff to show that it was customary fo!' ·people to cross the street at that point upon the railway track from sidewalk to sidewalk. The plaintiff testified that he had no. knowled,ge of the defect. In the platform. It appeared that the platform was in the carect the railway company. . , " The defeIidan,te"cl.'pted to, two passages ot the court. The first passage was as 'follows: "No'w, I am to deal with the last proposi· tion, or the 'last question,' first,. and that isw-hether or not,th,e,defendant is liable, because, when the plaintiff attempted to cross at the place, .he either fell or lost his motion, so that he hlid no longer <:o.ntt'(llof himself; whether or not in that condition of things the defendant did see, by its servants and agents in control of the engine, or, 'by the exercIse of that caution which the law requires that It should exercIse, coul<;!.. have seen, his condition in time to have averted the accident. Now, the law requires, as a common-jaw duty, that when an engine is approaching a crossing known to beUl;led by the pubtic, that there. should be some one on .the engine, on the lookout, watching ahead, in a position to see whether anyone is on the track, nJ:tble. to be hurt, and, if so, to use every applianCe and every means known to the art of mOVing the locomotive engine to stop the engine and prevent 8.n accident, if it can be reasonably done. That duty arises ortly wheI\ ithec\>,mes apparent to one on the lookout;. and what would be the same thing is, one on the lookout, and using reasonable care, could have seen the, thing, it Is the same as If it had been' seen. Wherea'll,of course, .as I sll1d to yoU before, if the defenda'n1:, by, having some person on the lookout, observing, .cOtlldhave seen that he had lost control of himself on the traCk, tn sufficient time to have, by using all the means l,nowI\ to the management of locomotive ,engines, prevent'l'd the accident; it was Its duty to do it, al;ld, It it failed to do ,it, it would be liable." The second passage was as follows: "ll'>ow, that is a question tor you tp 4ecide. What caught the bpy?, Are yOU satisfied of thatb,y a' prepoIidel'l'lnce of the testimonJ'? Notwithstanding be might have undertaken to cross so close to that engine as ,that the ordiriary·accidentwould not make the company liable, sU,ch as hayIng just struC.k him and ruUOV hlm,beca.nse I have said to you f in that evenqhjil detendant would not be .liable;, but .with his loot getting fast, and his inability. to ,release himself, did that CUJlse him to benm over, instead of his, effort to cross the track too close to thetraIIl,I If so, and you·find that it was adangerolls\iefect a1:J!lllt which the companywM,negligent,lls explained to you, the,n your verdict. should be for the plaintifU' The defendant further requested the .C!)urt,to deli,ver ,certaIn charges, which the court ref;l;lsed ,to deliver. They were ,as follow!!:. "(1) If the plaintiff, instead of crossing the .railroad ,track, was
BALTIMORl<J.& O. R.CmV. AN,DERSON.
crossing' the 'street, runnIng or walking ,between the:rails anA on :the planki,Q.g, for the purpose of avoiding the purpose being to cross the street on such planking from east to'west, and, while so doing, caught his foot in a hole in thee planking, and fell and received the Injuries, he cannot recover in this case. (2) The defendant wAl! not 'bound to anticipate that the plaltltiff would attempt to. run longitUdinally on lts track In front of an, approaching engine,as the plaintitr testifies he did, for the. purp<lse of. crossing from one side of the street to other; and even thougn there was a p,iece split or slivered otr of the side of the plank, as claimed by the plaintiff, by which his foot Was caught, causing him to fall, and while his foot was so fastened he was run over by defendant's engine, there can be no recovery' in this case.' (3) There is no evidence in this case worthy the consideration of the jury proving or tending to prove that the fact that there. was a piece split or worn off of the side of one of the boards in this crossing was the cause of the injury to the plaintitr, and the jury is therefore in· structed to find for the defendant. (4) Under the ·facts and circumstances of this ease, the defendant owed the plaintitr no duty except that of avoiding in· juring him willfully; .and there is no evidence in this case, worthy the consideration of'the jury, tending to prove, or provjng, that the injury to the plaintitr was willful on'the part of the agents and 'servants of the defendant; and, if there were 8uch eVidence, there can be no recovery in this case upon that ground, for the reason that the charge against the.defendant is' thll.t of negligence merely,"
J. H. Collins, for plaintiff in error. W.W. Skiles, for defendant in error. Before TAFT and LURTON, Circuit Judges, and SEVERENS, District' Judge. TAFT, Circuit Judge, after stating the facts as above, delivered the opinion of the court. ' The,Dl.ain street of North Baltimore did not cease to be a public highway because the railroad company had laid its tracks across it at that point. The public are entitled to Use a highway and from one, side to the other as they are entitled to use it for longi" tudinal passage. If the platform constructed by the railway company at the intersection of its tracks with the street was a convenient mode of eros-sing from one side of the street to the other, we do not lSee that the railway company has any right to object to such a use. Its only right is to have the travelers upon the public highway ob· serve due caution not to be in the way of its trains when the trains are crossing the highway. We think, therefore, that, if the plaintiff was otherwise exercising due' care, his use of the railroad track to cross the street from one side to the other could not make his conduct negligent. A different rule might prevail where the railroad track is constructed along the highway and lies parallel .to the course of travel in the street. In such a case, it might very well be held that it was negligence for the traveler along the highway to use the bed of the railroad track, when he might as well and as conveniently use the traveled part of the highway. But we apprehend that no such rule applies where the crossing is at right angles, and the traveler is merely attempting to cross overfrom one sidewalk tothe other. The evidence shows that the street was frequently muddy, and, as the track made a dry crossing, the used it. We cannot see that this was trespassing on the rights of the company in any way, or that the danger to the public in using crossing was appreciably increased over what it would be in crossIng the track at right angles. We do not think, therefore,
that the introductioIiof 'evidence as to the custom of the public . prejudicial to the defendant. Our conclusion upon this point disposes of the exception based on the refuSal of the court to give the first and second requests, in which it was assumed, as the Jaw, that the public had no right to use the railway crossing as a means of crossing the street from one sidewalk to the other. Th.e passage of the charge first excepted to states the law correctly. In that charge the court ,assumed that the plaintiff was guilty of negligence in crossing the railway track as he did,and then stated to the jury that his negligence would not relieve the defendant from liability iI they found that, by due care, the engineer and fireman might have stopped the train after they had seen,or ought to have seen, the position ()f danger in which the plaintiff, by reason of his negligence, was placed, and could have avoided injuring him. TheobjecUon on behalfof the defendant to this statement of the law is that there was no. obligation on the part of the agents of the railway company to look out for ,the plaintiff, or to assume that he would put himself in the dangerous plaqe. The plaintiff was one of the public. The obligations upon the public and the railroad company at an intersection of the track with a highway are correlative. Improvement 00. v. Stead, 95U. So 161. Neither is relieved from the duty of carefully watching the crossing to avoid accidents by the assumption that the. other iis doing his whole duty at such a iHa.ce.· Blount v. Railroad 00., 22 U. S. App. 129, 9. O. O. A. 526, and 61 Fed. 375; Railroad Co. v. Houston, 95U. Schofield v. Railway 00., 114 U. S. 615, 5 Sup. Ot. 1125. The saIne obligation on the part of the company does not arise to keep a lookout in cases where the person injured is a trespasser or is not using the highway as 11 Aigh.way. Railroad 00. v. Cook, 31 U. S. App. 277, 13 O. O. A. 364; and 66 Fed. 115; Railroad Oo.v. Howe, 6 U. S. App. 172, 3 O. O. A. 121, and 52 Fed.. 362. But the broad distinction between the case at bar arid such cases is that the plaintiff here was on th'e highway, where he had the right to be unless there was danger of run over by a train of the defendant, and where the defendant was bound to anticipate the Possibility of his being when it was using the cros,sing. This distinctioIj. is clearly brought out by Judge Lurton in delivering the opinion of this court in Railroad 00. v. Oook, 31 U. So App. 288, 13 O. C. A. 367, and 6.6' Fed. 119. .our conclusion that the first passage of the charge excepted to was correct disposes also of the exception based on the refusal of the court to give the fourth of defendant's requests to ch.arge, which embodies the theory that, if the plaintiff was negligently on the crossing, the railway company was under no obligation to keep ,a lookout for him. We come now to the second pas.sage of the charge, which was excepted to. By this passage the court left to the jury the questions -First, whether the defendant was negligent in allowing such a defect in the platform; and, second; whether the proximate cause of the accident was the negligence of the plaintiff in crossing in front of the approaching train or his being caught in the dangerous hole, of the existence of which he was ignorant, and directed a verdict for plaintiff only in case defendant's negligence was the cause of the
'WOFFORD BROS. DRY-GOODS CO. V. SMITH-M'CORD DRY-GOODS 00.
defect in the platforin, and the defect was the proximate cause of the accident. The action of the trial court was in accord with the decision of this court in Railway Co. v. Craig, 37 U. S. App. 654, 19 C. O. A. 631, and 73 Fed. 642. In that case plaintiff was a switchman, who had been injured while attempting to uncouple two cars by !:laving his foot caught in an unblocked frog, and the liability sought to be imposed on the company was based on its failUre to comply with the. statute requiring it to block all frogs. The proper construction of the statute made contributory negligence of the injured person a defense to his recovery for its Violation. The trial court charged the jury that, if he did not know that the frog was unblocked, his negligence in going between the cars when moving at a too rapid rate of speed could not contribute to the accident, because itoould not be the proximate cause thereof, but the defective frog must be such proximate cause, and that alone. The case was reversed on the ground that under such circumstances the question of proximate cause should have been left to the jury. This is the course whIch the judge at the circuit took in the case at bar. He left to the jury to decide whether it was the negligence on the part of the plaintiff in crossing before the engine which proximately caused the accident, or in the fact that his foot was caught in the hole. No other errors appear in the record, and the judgment of the court below is affirmed.
SWOFFORD BROS. DRY-GOODS CO. et at v. SMITH-McCORD DRYGOODS CO. (Circuit Court ot Appeals, Eighth Circuit.
February 7, 1898.)
CLAIM: OF ATTACHED PnOPERTy-ADMISSIONS BY INTERPLEADERS-PROOF OF ATTACHMENT LIEN.
Where claimants under a chattel mortgage allege in their interplea that the mortgaged property has been levied on by the marshal, under a writ of attachment Issued In the suit in which the interplea Is filed, and admit in the progress of the trial that the attached property and that which they claim Is the same, it Is not necessary, on the trial of the interplea, for the attaching creditor to offer in evidence the record in the attachment suit to show that he has secured a lien on the property.
CORRECTION OF VERDICT AF'rEH DISCHAUGE OF JURY.
Where the verdict is. responsive to the issues, and clearly discloses the intention of the jury, the court may correct it in mere matters of form and detail, after the discharge of the jury.
GROUND OF MOTION QUESTIONS
MOTION FOR PEREMPTORY INSTRUCTION RAISED.
IDxceptioD to the overruling of a motion by mortgagees for a peremptory Instrnction in their favor, on the ground that plaintiff in attachment has failed to show any title to or' lien UPOli the mortgaged property, does not raise the question of the sufficiency of the evidence to justify SUbmitting to the jury the question as to whether mortgagees had participated In alleged fraud at the mortgagor in the execution of the mortgage. The question whether a mortgagee has so far participated in an alleged scheme of the mortgagor to defraud his creditors as to render the mortgage invalid as to them is generally so dependent for its solution upon Inferences 85F.-27
1l'IORTGAGEE'S PARTICIPATIoN IN MORTGAGOR'S