87 FEDERAL RElPOlt1'IUt.
I· ( .
,:FL;IPPIN 1'. KIMB.&L!)et al; «lJrcult 'C61lM.
!Where a. compla.1nan,t, 'instead of proceeding at law, under 25 Stat. 433, : " agntnst apl1Qlnted by a ·federal cQurt, Inte).'venes In the ,receiver· shiP proceeding on the cba,ncerYl;lide,. he Wlj.ives his right trial by j?ry; and, If. the court submits an Issue of fact to a jury, the'verdlct and findmgs are advisory. ' ,,
MASTER AND SERVANT-FELLOW SERVANT.
CnANCERY PRACTICE-SUITS AGAINST RECEIVillR-JURY TlUAI>.
One of a gang of men engaged 111 clearing awilya railway wreck is a ,fellow: servant of the acting foreman of the gaJlg, and cannot recover froin the compariy for an Injury received tb,ro)lgh the alleged of such foreman.
This ease comes upon appeal from the circuit court of the United States for the Eastern district of Virginia.
· Upon bill filed in the court below by the FideIlty 'Trust & SafeDeposltC6mpany et al.agalnst the Norfolk & Western Railroad Company. ilnd ' :the praceedlngs therelluder, the appellees, F; J. Kimball lind Henry Fink, ,,,,hlle, thecOmVany was in. operation under tJ:1em, tp.e, appellant, OD,eof"tp,eir was injureQ.. .He, intervened, in the ,cause by' pe1ltion, ,setting' forth the facts attending' his, Injury, with thig,alternatlve prayer for leav(Ho file lils petition, aIid "to ,sue the receivers in the circuit court of the' United 'States for: the Eastern district ,of Virginia, on Its . cOmmon-law side, and:!that, your. honor!! ,may order ,and direct ,that the sa,ldfecelyers do aPllear,.llJ;ld defend said suit whenever tJ,ie same .is Instituted, '01;,' that your honors wlllmake the petitioner a party to this cause now' pending. and direct aD. issue out of chancery to settle the facts above recited, l\.nd will award such damages unto your petitioner as he Is entitled he1-'eby,". and fll!,' general relief, On motion of the petitioner to lellVe given to, .him the petition, which was done. and the receivers, were, ordered to answer the same. The answer was filed as directed, and on motloh of'the petitioner a jury was Impaneled to try the issues raised upon petition and answer. These Issues grew out of the allegations of these pleadings. The petition, a:l;tel' stating that the petitioner was:1n the employment of the l'ecelvers as a yard hand, and that his duties confined to labor upon ,section, 22, alleges that he was ordereq by, (9reman of ,his section to go with hI,m to the' scene of a traIn wreck upon section 21, for the purpose of assisting In removing a celltain wrecked train of the company from the track; that he had no knowledge of this: kind of w.ork, but that he direction and obeyed orderS,and went to. the wreck. and worked control of l1Jmmett Ferrell, sometimes called Hanna, who wal! ,not a regUlar managex;, of such work, but wa!!, that day a substitute for B. C.. Ha,nna, the regulartiJ,anager; that by, reason of the inexperience,.of Emmett Ferrell, I$.OD;letimes ('!alled Hanna, and by reason of the negligence and carelessness of the officers an4 agents oftl\erece!vers; and aIsq by reason of defective appliances usell', In and about, the wreCk, the derrick which wa,s then and there used was negligently and carelessly upset; and fell <iver ,and upon the left foot of the petitioner, crushing H. and. necessitating Its amputation. The answer says that lDrilmett :Ferrell (called Hanna In the petition) was not manager of the wreck car, but acting foreman wrecker. It denies that he was either ignorant' or and avers that he was thoroughly competent for the work, It denies that there was any carelessness or negligence on the part of any of their agents or or that there were any defective appliances, or that defective appliances had anything to do with the accident, which was one of those Inexplicable and unavoidable accidents that are liable to occur with the best management; and that the danger, if any, was as apparent to petitioner as anyone else. A jury having been impaneled,
FLIPPIN V. KIMBALl,.
testimony was taken before the judge who ordered the trial and 11. verdict was found by the jury on the issues joined for the) petitioner, fixing his damages at $13,500. The respondentil entered a motion to set aside the verdict on the grounds that it was contrary to the law of the case, contrary to the evidence In. the case, unsustained by the evidence, and that the damagell were excessive. The court below, "being of the opinion that the negligence, if any, was that of a fellow servant with petitioner, and that the damages awarded are excessive." set aside the verdict, and dismissed the petition. The case comes here on five assignments of error. The, first, second, and third assign as error the setting aside of the verdict, and not entering a decree thereon 'for 'the petitioner. The fourth assigns as error. the dismissal of the petition the ground of negligence of a fellow servant, because the persons through whose negligence the accident occurred were not fellow servants of the petitioner, because the accident was caused by defective appliances, and because the person whose negligence caused the accident was known to be unfit and improper. The fifth assigns as error the holding the damages excessive.'
Edmund Waddill, Jr., and Edgar Allen, for appellant. Robert M. Hughes, for Before GOFF and SIMONTON, Circuit Judges, and trict Judge.
SIMONTON, Circuit Judge (after stating the facts). The appellant, }'-'lippin, could have proceeded in an action at law against the receivers without leave of the court. 25 Stat. 433, Act 1888. Of his own accord he intervened in a suit in equity, and submitted himself to the jurisdiction of the court. By doing this he waived his right to a trial by jury, for it is a fundamental principle that the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction. If it be conceded or clearly shown that a case belongs to this class, the trial of questions involved in it belongs to the court itself, no matter what may be its importance or perplexity. Barton v. Barbour, 104 U. S. 133. This case being one of equitable jurisdiction only, the court was not bound to submit any issue of fact to a jury, and, having done so, was at liberty to disregard the verdict and findings of the jury, either by setting them, or any of them,' aside, or by letting them stand, and al· lowing them more or less weight in its final hearing and decree according to its own view of the evidence in the cause.' Improvement Co. 'Y. Bradbury, 132 U. S. 509, 10 Sup. Ct. 177. So, when the court belOW, in accordance with the prayer of the petition, ordered an issue out of chancery to try the issues, the verdict was only advisory, and not conclusive upon the court. It had the right to disregard it, and even to render a decree contrary to it. Watt v. Starke, 101 U. S. 247. These authorities dispose of the assignments of error which look to the result of the verdict of the jury. It was for the court below alone to determine its force and effect, and this court cannpt deny its right to disregard it. Having set aside the verdict, the circuit court proceeded to con· sider the case, anddismiseled the petition. This was in accordance with rules of equity procedure. A similar course was sustained by the supreme court in KohI).v. McNulta, 147. U. S. 238, 13 Sup. Ct. 298.. It is errortbat the court dismissed the petition up?n the ground that the negligelice, if any, causing the accident, was that
87 FEDERAL REPORTER.
of a of T4e assignments of error proceedupon thegrounds:that the foreman in charge of the wreck was of.hisduty; that the apuS,ed' were defective" and tl,lat superior, officers of the receiver were present directing, il}"w,hole Or in P3:rt, the operations; and that the foreman in charge of the wreck was entirely inefficient; and that in no event w.as, he the fellow servant of petitioner. As must examine 'the testimony, which this is an, appeal in e()uity; is spread out in full on the record. ·The petitione:i'; a,t the time of the accident, was 24 years' of age. He had been in the employment of the receivers one month as a section hand, and had seen service before on railrO'ads for two months and a half. The wreck occurred about two miles from Crewe, where he was employed, and he was ordered by his section master. to go with oth,er hands to the wreck to assist in Clearing the track. The gang engaged in this work was made up of hands from several parts of the road, who were tinder the direction' of Enlnlett Hanna' or Ferrell. This man was the adopted son of Capt. B. C. Hanna, who was wrecking master, and was his chief assistant, acting, for him in his absence. On this day the elder Hatina was engaged, on another part of the road. The evidence shows that Emmett Ferrell had the perfect confidence of his chief; that, nobvithstailding h18youth (he was either 22 01'23), he had had large.experience; and'lleenjoyed among the railroad people the reputation of a skUlful and efficient man in' charge of' wrecks. It also appears from theevide'nce that on the day of the accident he was in full charge, and altho,ugh there were present Sowers, the track super,;isor, Wells, the 'i'Oli4 forernan of engines, Sanderson, as,sistantsuperintendent of the nlotive power, and perhaps other officials, ofthem assumed charge of the wreck, as it was notin the lirie of their duties, but left everything to Ferrell. Nor does the preponderance of the evidence lead to the conclusion that the appliances useq defective. 'It is true that in the a rope used at the derrick b'roke,but nothing occurred as the result of it, and, the' rope having been mended,' or another substituted, no further break occut:t!e(i. The accident probably occurred 'because, the cars not We ,track, there was: too much weight upon the derrick, and, a ,,'rhese cause,4 it to upset, an.d so the ,petitioner W3;& llutt. If there w:as negligence in this, it was the negligence of Ethmett'Ferrell, who was at the time directing the operatiQli1s, and himself assisting in arranging the blocks to the wheels of a' car. These blocks were not regularly prepa,red, but were mad¢ of 'fence rails, parts of, cross-ties, and wood picked up on the Evidence was ojiered showing that on one system' of railways wrecking cars always crarried blocks prepared for and suitable to this purIJose, . But there is no evidell.ce of a custom or usage of this nor is there evidence that' blocks, obtained as those Wei't:! 011 do not serve tlit;lirpurpose. It must be remembered ,thattllere iSnQ presumption of negligence in this caseagainst the defendant, the action being by an employe against an employer. 'rhe" burden is on the petitioner. Railroad 00. v. Barrett, 166 U. S.617, 17 Sup. Ct. 707. So the case really turns upon the
FLIPPIN V. KIMBALL.
pomt, which controlled the circuit court, if the accident was the reo sult of negligence, the negligence was that of Emmett Ferrell; and the question is, was he the fellow servant of the petitioner? He was the foreman or acting foreman of a wreck car at the wreck. His position is thus explained by Mr. Sanderson, who seems to be an intelligent witness:
"He is a boss or acting foreman at that time in charge of a gang or col· lection of men who may have been gathered up as has been most convenient; exactly the same relative position as a section foreman or car foreman would be with a gang working under him."
In determining this question it is unnecessary to quote the multitude of decisions bearing upon it, nften contradictory, and frequently obscure. The general rule is weI." stated in a note to Railroad Co. v. Smith, 8 C. C. A. 670 (s. c. 59 Fed. 993), quoting for its support many authorities:
"It makes no difference in the application of the rule exempting the master from liability for injuries to his servants for the acts of the co-servants that the one receiving the injury is inferior in grade and subject to the orders of the one by whose negligence the injury is caused, if both are engaged in the same general business, accomplishing one and the same general purpose."
We held in Thom v. Pittard, 8 U. S. App. 597, 10 C. C. A. 352, and 62 Fed. 232, that section men and laborers on repair trains, being en· gaged in the common purpose of keeping the railroad in order, are fellow servants. In Deavers v. Spencer, 25 U. S. App. 411, 17 C. C. A. 215, and 70 Fed. 480, this court held that a track hand, who was injured by the alleged negligence of the track foreman while he was working on a railroad, was the fellow servant of the foreman, and could not recover against the receivers for the injuries he had suffered. In the circuit court of appeals of the Fifth circuit-McGrath v. Rail· way Co" 23 U. S. App. 86, 9 C. C. A.133, and 60 Fed. 555-it was held that "a railroad employe, who was one of a gang of men employed to remove a wreck, cannot recover from the company for injuries caused by the negligence of the wreck master, who has charge of the wrecking car." And in Railway Co. v. Rogers, 13 U. S. App. 547, 6 C. C. A. 403, and 57 Fed. 378, the same court held that the acting foreman of a gang of laborers engaged in repairing a bridge was the fellow servant, engaged in the same employment, with a member of the gang who was injured by the falling of a piece of timber during the repairs of the bridge. Besides this, the petitioner is a man matured. He was in the employment of the receivers as a section hand to work on the track. He was not placed in a position of undisclosed danger; but he was doing work whose risks were obvious. Necessarily he assumed those risks when he went on with his work, and the mere happening of the accident cannot impute negligence to his employer. Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298. The judgment of the circuit court is affirmed.
CHANDLER etaJ,v. POMEROY et al. (Circuit Court, D. New Jersey. June 1, 1898.) TRUSTS-WILLS. By-' the terms ofa will certain funds were deposited in trust, the proceeds to be paid to decedent's daughters. Other funds were also placed in trust, proceeds to go to decedent's son,. and on his death the principal The daughters and son entered into an to go to the said agreement by which the proce.edsfrom, the trust, funds were to be made a "joint fund," and divided equally among the beneficiaries. Held that, on the. death of the son, the trust as to his estate terminated, and passed to the daughters, and they were not liable, under the agreement, to his estate for the principal of $ueh fund, nor for the interest received thereon after his death. I REFERENCE-Fu,WINGS-PRESUMPTIONS. Every presumption Is in favor of the correctness of a master's decision on questions of fact. COURTS-DECREE OF ORPHANS' COURT. An alleged surcharge in the amounts received through the distribution of a trust fund under a decision of an orphans' court of a state cannot be recovered In the United States circuit court. REFERENCE-,REPORT-ExCEPTIONS. On exceptions to a master's .report, the court will not verify each interest calculation. ' TRUSTS-ACCOUNTING. On the termination of a trust, the fund, which was to be divided among a son and two, daughters, was intrusted to the son by the daughters, who received payments from him from time to time. Held that, in an accounting under an agreement between the daughters and another beneficiary under another trust, to make the moneys from their trusts a joint trust, to be equally divided, the daughters must account for the payments secured from the son. DOOUMENTARY EVIDENCE. In an action for an accounting, bank books showing drafts drawn to the order of some of the parties are inadmissible, where it is not shown that the books are original entries, or that the entries were made by the clerk produclng the'books, and where it is not shown thllJt the drafts were paid.
'.['his was a bill for an accounting by Frank R. Chandler, trustee and executor, and another against Josephine Pomeroy and another. O. O. Bonney and WilliamB. Guild, for complainants. George Baldwin Newell a,nd So H. Grey, for defendants. KIRKPATRlCK, District Judge. In June, 1880, George Pomeroy died, having made his last will a,nd testament, in which, inter a,lia, he directed his executors to pay to the New York Life Insurance & Trust Oompany securities to the amount of $50,000 par value, to be held in trust for the benefit of his wife, and at her death to divide the said securities and their proceeds equally between his three younger chjJdrl;W, Edward,Julia, and Josephine. In February, 1883, the wife of George Pomeroygied, and the securitie!!labove mentioned went into the hands of Edward. Julia and Josephine, though entitled to a share thereof, received no part of the same. George Pomeroy, in his will, also directed his executors to pay to the New York Life Insurance & Trust Company securities to the par value of $30,000, to be by them received and held in trust to pay the interest as the same accrued to his son George P. Pomeroy during his life, and