. 92 FEDERAL' REPORTER.
a case. 'If this conceded; the' federal courts would become, the cOmmon resort of persons who have no right, either under the constitution or the laws of the United States, to litigate in those courts." People's Bank v. Calhoun, 102 U; S. 256. The disposition of the case Which is rendered necessary leaves the logs in the possession of the plaintiffs in error. The appropriate remedy, and, indeed, the only mode of proceeding, by which the question of ownership to these logs can be judicially determined, is by an action of replevin or a suit for their value: The seizure by the government of the logs upon a claim of title leltves the question of ownership undetermined and illdeter minable, for, the government being in possession of the logs, claiming to be the owner, can bring no action for the logs or their value, and no action for the logs or their value can be brought against the government, so that the ownership must remain forever unsettled. The judgment of the district court is reversed, and the case remanded, with instructions to dismiss the same for want of jurisdiction.
BAIRD v. REILLY.
(Circuit Court of Appeals,Second Circuit.
January 25, 1899.)
No. 46. 1.
MASTER AND SERVANT-UNSAFE PLACE '1'0 WORK-LIABILITY OF MAS'l'ER.
'i'here is an implied contract on the part of a master that he will see to it that the place where his employt'J is reqnired to work is reasonably safe, and this obligation is not satisfied by devolving it on a suoordinate; but If the place is originally ,safe, but becomes unsafe during its use by the servants through the negligence of a fellow servant. such fact is a defense to an action against the master for an injury reSUlting. A hospital record, containing remarks regarding a patient entered thereby a: nurse, is not competent evidence to prove the facts therl'in stated.
2. EVIDENCE:"':"'HosPITAJ, RECORD.
In Error to the Circuit Court of the United States for the Southern District. ,of New York. J. Woplse.y Shepard, for plaintiffin error. H, C. Smyth, for defendant in error. BeforeWALLAGE and SHIPMAN, Circuit Judges. PER CURIAM. This is an action for negligence, brought to recover for injuries received by the plaintiff. while in the employ of the defendant, by the in of a trench. The defendant, under a contract with the city of New York, was laying a system of water pipes in one of the streets;illld for that purpose had caused a trench to be made, about ten feet deep and five or six feet wide. The plaintiff had nothing to do with cutting the trench, which had been going' on for $everal weeks, but was one of a gang of men sent into it, after it hadbeenc'Ilt, to lay the pipes upon the bottom. There was evidence upon the trial tending to show that, at that part of the trenell which caved in, it had "been cut through soil which in places was loose and soft. A steam engine and derrick, weighing about 20 tons. mounted upon a four·wheel platform straddling the trench, had been
BAIRD V. REILLY.
used in the progress of the work oyer the place which caved in for several days previously. A competent foreman was in charge of the general work for the defendant, and he had been provided with all the necessary materials and appliances for protecting the side walls of the trench, but had not used them at that part of the work, because, in his judgment, it was not neeessary. Error is assigned of the refusal of the trial judge to dired a verdict for the defendant, of his refusal toinstruet the jury as requested on the part of the defendant, and of various rulings upon the trial in respect to the eddence. The case was submitted to the jury by the trial judge upon instructions which accurately and adequately stated the rules of law applicable to theeontroversy, and prel'iented the r'eal questions of faet ,vhich the jury were called upon to decide. As ther'e were questions of fact, whieh eould not properly have been taken from the eonsideration of the jury, his refusal to direet a verdict was plainly right, and does not merit discussion. The request to instruct the jury, which he refused, was, in substance, that if they found from the evidenee that the defendant had seleded a fOt'cman who was competent to take charge of the work, and had giYen him proper instructions, and if the cave-in occmred by reason of the foreman's subsequent neglect to shor'c up the trendl, the neglect, if there was any, which caused the accident, was that of a co-servant of the plaintiff, and the defendant was not responsible. An employer is not relieved from responsibility to an employe, who has been injured in consequenee of his failure to make the working plaee reasonably safe, by proof that he employed a competent superintendent or foreman, supplied him with necessary appliar\('es, and gave him all needful instructions for tlw purpose. He eannot escape responsibility by delegating his duty in this behalf to another, because it is his implied contract with the employe that he will see to it that the working place is reasonably safe, in view of the charadeI' of the work to be performed; and this obligation is not satisfied by devolving it upon a subordinate. 'VIren, however, it appears that the wOl'king place originally, and when the employe waH sent to do the work there, was reasonably safe, but became unsafe at the particuhu' time of the accident by causes that could not have anticipated, by exigencies created in carrying out the details of the work, or by the neglect of a fellow servant, a different rule is applicable. 'fhe employer's obligation towards an employe does not oblige him to keep the working place in a safe eondition at every moment of the work, so far as its safety depends upon the due performance of their work by the fellow sernmts of the employe. Armou!' v. Hahn, 111 1T. So :n8, 4 Sup. C1. 4BB; Perry v. Rogers, 157 N. y. 251, 51 :N. E. 1021. The question of faet here is exhibited by an excerpt from thl> charge of the trial judge, as follows:
"The theory of the plaintiff' is that the trench in which the defendant set the plaintiff' to do the "'ork was not a reasonably safe place for him to work in. or, in other words, that the master had not heen reasonably careful and prudent in protecting' that trench against accidents which mig-ht be expected to occur. It does not need any evidem'e to tell us that for a slight excavation in tJ.1e ground, with hurd hanks, it is wholly lUmp('essary to do 'anything except to cut your trench; nor do we need any eviUence to tell us
92 FEDERAL .REPORTER.
that if we go down far enough, and, the side walls are soft,the time wm.come when they are likely to cave in, unlesS shored. In tbe case of, those t\yo extremes, we need· no experience to inform us about it. The question, here arises as to the situation between those two extremes. When does the time arrive when the trench to he up? And was thi$. 'trench in such a .condition that, in the exercise of reasonable prudElnce, the defendant should have protected it by shoring?"
Assuming the evidence about the character of the soil to be true, the facts justified the jury in findipg that in the absence of shoring or sheet-piling, such as it was customary t() when water pipes were being laid in the city of New York in trenches of depth, the working place to which the defendant was sent was not a reasonably safe one. There was no evidence tending to show that it became have been error unsafe after he was sent there, and it would to have granted the instruction requested. We have examined the exceptions tp the rulings of the trial judge upon evidence, of which error il;! assigned, and find no error. It was proper to admit testimony showing that it was when constructing similar works in the streets of New York, to protect the trenches and braces. It was proper from caving in by putting in sheet to exclude from the consideration of the jury that part of the hospital record which consisted of the remarks of the nurse who attended the plaintiff. If she had been called as a witness, this part of the record might have been competent for use by her to refresh her memory. It was not competent as independent evidence of the truth of the statements. While we are notsa,tisfied with the conclusions reached by the jury in this.case, there was evidence to support them, and we can find no reason for reversing the judgment. It is accordingly affirmed.
In re BUNTROCK CLOTHING CO. (District Court, N. D. Iowa, E. D. March 29, 1899.)
BANKRUPTCY-POSSESSION OF PROPERTy-MORTGAGEE.
·Where personal property, scheduled as part of the assets of a bankrupt, passed into the possession of creditors holding mortgages .thereon, before the commencement of the proceedings in bankruptcy, and is held by them as such mortgagees, they cannot be, ordered to surrender such property to the trustee in bankruptcy, on his·.petition, in a summary proceeding in the court pf bankruptcy. Yeatman v. Institution, 95 U. S. 764, followed.
In Bankruptcy. Submitted on cel'tificate of referee. F. F.Swale, for trustee. W. J: Springer, for mortgagees. SHIRA8, District Judge. From the report, the referee in this case it appears that on the 13th day of December, 1898, the Bunt. rock Clothing Company, upon the petition of creditors, was adjudged to be bankrupt, and on the 22d day of December it filed a schedule of assets, consisting, mainly, of a stock ()f clothing and furnishing goods v!llued at $8,000. It further appears that on the 31st of Augnst, 1898, the bankrupt firm executed a chattel mortgage on the stock of goods to W. J. Springer, as trustee, to r;;ecure certa,in debts,