93 FEDERAL REPORTER.
the supreme court uses, the fonowing expressions: "Upon inithe case, the judgment was one which must necessarily In the case at bar the "facts" were tho$e .found by the jury. ' To whichever count It assigned its verdict, it J:!1ust, as we, have already said, have fQun\lall tMfacts alleged in the third and therefore, any event; to, support It the;l'efore becollleB ummportal,lt Wllether or not the wasm error On ,the ,question whether the guy 'concerned "ways, works or machinery," or in regardto the alle'ge(i negligence of a person charged with sUPerintendence II). the statutol'y sense.' In any view of the case, facts enough being found to sustain the, verdict on the third count, the judgment must stand. ' " We can go further. " On the whole c:ts,e there is, as we have already said, the uncontrovertible presumption that the defendant below, in operating this part of its line, w,as bound to great vigillfnce and care. There, is unQ,oubted evidence that it knew that the gliY was to be stretchedQver the track; that it ;hl;ld ample to provide in it should be set at a proper height; that omission to accomplish this was pegIigence toWa1'9sthe plaintiff below; that there was no e.vidence, within, the e;qiressiohs of Railway Co.' v. Archibald, already cited, that he lpJ,ewof the defect, or that it was plainly observable by him; and the circllmstances of the case, ,show that, performing his duties as he was required to perform theill,he could not easily haVie, known it.. So that, on thE:l.whole case, if tlle verdict had been for theliefenda,pt below, the cOllrt below would have been required, as the rule is now applied, to )lave set it aside. Ou the whole, on the uncontrovertiblefads of the case, a verdict and judgment for the plaintiff below were tlle only verdict and judgment which could properly have been rendered; and therefore the rule applies which is stated in Decatur Bank v. St.Louis Bank, already referred to, at page 301, that, to warrant the 'reversal of a jUdgment, there must not only be error, but the error must be such as to have worked injury to the party complaining. A!l the. other alleged errors are covered by what we have already said, or are so clearly not errors as not to require any expression of our views about them. The judgmentof the circuit court is affirmed, with interest, and the defendant in error recovers his costs in this court. all
CHOCTAW, O. & G. R. CO. 10,
FUEL & IRON CO. May 2, 1899.) Term.
(Circuit Court of Appeals, Tliird Circuit.
SALE-PERFORMANCE OF CON1'RACT-PLACE· OF DEI.IVERY.
Defendant railroad company purchased from plaintiff J;ails to be used In the construction of its road, to be delivered, at its option, at either one to be paid by defendant, and deof two points on its road; the ducted from the purchase' price. One of the points of delivery was further from the place of, shipment, than the other, and could reached by either of two railroads, while but one of them reached the nearer point. Defendant made a private contract with the latter road, by which it
CHOCTAW, O. &: G. R. CO. V. COLORADO FUEL & IRON CO.
agreed to bill the ralls to the further point at a fixed rate, but to actually deliver them at the nearer point, the defendant to transport them the remainder of the distance on its own rood, and to receive a portion of the freight. Defendant then notified plaintiff to ship the rails to the nearer point, which it did. Held, that when the rails reached such point, and were there delivered to defendant, their delivery under the contract was complete, and defendant was not entitled to credit on the price for any freight beyond that actually paid to such point. If delivery was to be made at the further point, plaintiff had the. right to ship by either road, and to whatever benefit it might have secured through the competition, of which right it was deprived by the direction given.
In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Samuel Dickson, for plaintiff in error. A. B. Shearer, for defendant in error. Before ACHESON and DALLA.S, Circuit Judges, and BUFFING· TON, District Judge. ACHESON, Circuit Judge. This action was brought by the 0010rado Fuel & Iron Company against the Choctaw, Oklahoma & Guff Railroad Company upon a written contract dated August 22, 1894, wherein the plaintiff sought to recover a balance alleged to be due to it on account of the price of steel rails delivered to the defendant under the contract. By the stipulations of the contract the defendant had the option to have the rails in question delivered either at El Reno or Oklahoma City, and in pursuance of written orders from the defendant the plaintiff delivered the rails at EI Reno. Under the terms of the contract agreed to advance and pay the freight on the rails for the plaintiff at the points of delivery, and had the right to take credit therefor, and deduct the same, with interest, from the price of the rails. This provision as to freights is as fonows: "The freight charged on the rails to be paid by the said second party as billed, and credit given to it by said first party in the monthly settlements; interest at 6 per cent. to be allowed said second party for such payments on aeeount of freights." The only matter in controversy between the plaintiff and defendant in respect to the rails delivered at EI Reno was as to the amonntof money the defendant was entitled to take credit for and deduct from the price of the rails in settlements with the plaintiff as freights paid by it for the plaintiff all the deliveries at EI Reno. The defendant de· ducted $4.15 a ton, while the plaintiff contended that the defendant shonld have deducted only $:3.75 a ton,-the total difference being $3,637.74. Under the instrnetions of the court (whieh are here assigned for error), the jnry allowed the defendant credit for freight paid by it on deliveries at Reno at the rate of $3.75 a ton only. 'l'he verdict shows that the jury found that the rate of freight actually paid by the defendant on the rails delivered at EI Reno was not $4.15 a ton, but only $3.75. This was indisputably established by the evidence. The defendant, however, elaimed to 'be allowed the greater rate as against the plaintiff under an arrangement entered into between the railroad company which transported the rails to EI Reno and the defendant company. The nature of that arrangement, with
tliieattending circumstances, we now proceed to explain.. The -mills Oft.b.e plaintiff where the rails were manufadured, and ,from which were to be shipped, were at Pueblo, Colo." Shipment ()f the rl;\ilsfrom Pueblo to the defendimt's line of road could be made by either one of two routes of transportaticlll, both open to the plaintiff., namely, by theOhicago, Rock Island & Pacific Railroad, which the defendant's line at EIReno, or by the Atchison, Topeka & Santa Fe Railr()ad, which intersected the defendant's line at Oklahoma City. The distance between EI Reno and Oklahoma City is 29 miles, and that portion of the defendant's line between these points was completed and in use at the time of the delivery of these rails. Oklahoma City is to the eastward of EI Reno, and these rails, it seems, were intended for use on the ,defendant's line eastward of (Hdahoma City. The defendant company got the Chicago, Rock Island & Pacific Railroad Company to name a rate on the rails of $4.15 a ton from Pueblo to Oklahoma City upon the understanding that the latter company should tram;port the rails from Pueblo to EI Reno at the rate of $3.75 a ton, and that the defendant company should transport the rails upon its railroad from EI Reno to Oklahoma City at the rate of 40 cents a ton. This was altogether a private agreement between these two companies. The .defendant company notified the plaintiff. to deliver the rails at EI Reno, which the plaintiff proceeded to do, shipping over the Chicago, Rock Island & Pacific Railroad, the only line available for the shipment under the notification. The brief of the plaintiff in error (the defendant below) contains the following statement explanatory of the transaction:
"The defendant, desiring to secure an Oklllhoma City delivery, and at the same time assure to the Rock Island the haul <if the rails (which latter could duly be accomplished by notifying the plaintiff to deliver at m Reno, as otherwise the shipment might have been made over the line of the Santa Fe Company directly to Oklahoma City), directed the plaintiff to deliver the rails atEI Reno, having, however, previously reached an understanding with the Rock Island Cornpany that it would consign and bill the rails on the through to Oklahoma City,"
The learned trial judge instructed the jury, in substance, that the freight paid by the defendant to the Chicago, Rock Island & Pacific Railroad Company for the transportation of the rails from Pueblo to EI Reno was what the defendant had a right to deduct under the contract sued on, and that the arrangement between the two railroad companies did not justify any greater deduction from the price of the l'uils; that, when the defendant elected to receive the rails at EI Reno, and the plaintiff delivered them there, the plaintiff had performed its whole contract obligation; and that the expense of the aftertraI).sportation of the rails from EI Reno to Oklahoma City was to be QQrne by the defendant company itself. These instructions, we think, were right. Tbe contract of August 22, 1894, contemplated and provided for the reimbursement of the defendant for freight actually paid by it. This is the stipulation of the parties, and defines their rights in ,this particular. 'Vecannot accept the suggestion that the delivery of the rails at El Reno was to the defendant in its capacity of a tanier. 'Ve think it qnite clear thatt"Q.e delivery of the rails was ynder the contract of sale, and to the defendant as purchaser, and in
NEW YORK, N. H. & H. R. CO. V. KELLY.
other ::haracter. The defendant company had the option to dired deliverv either at Oklahoma City or EI Heno. It elel:ted EI R('no as of delivery, and so notified the plaintiff company. Actordthe ingly, delivery was there made. That terminated the transaction. plaintiff had no further concern in the disposition of the rails., The defendant company is not now to be heard to say, as against the plaintiff, that EI Reno was not the place of delivery, but that Oklahoma City was. It cannot be affirmed with any degree of certainty that the arrangement between the two railroad companies wrought no detriment to the plaintiff. notification to deliver at EI Reno shut up the plaintiff to one route, and, it seems. was intended to do l;!0. If the plaintiff had been notified todelivel' at Oklahoma City, it would have had the choice of two routes of transportation. That fixed freight rates of $4.15 a ton had then been established on these two lines froIn Pueblo to Oklahoma City is not satisfactorily shown. 'fhe weight of the evidence, we think, tends rather to the contrary conclusion. The president of the defendant company himself, speaking of the Chicago, Roek Island & Pacific people, testified: "After they made this arrangement with us, in order to enable them to the more carry it out. as I understand, they issued the tariff showing a rate of $4.15 to Oklahoma City." Again. he stated: "They made no rate to EI Reno. * * * The only published rate was to Oklahoma City:' There is evidence to show that freight rates from Pueblo to Oklahoma City were then the subject of special contract. and that by the Atchison, Topeka & Santa Fe Railroad the plaintiff could have had the rails transported to Oklahoma City for $3.75 a ton. The defendant had no right to deprive the plaintiff of an opportunity to procure that rate. The judgment of the circuit court is affirmed.
NEW YORK, N. H. & H. R. CO. v. KELT,Y. (Circuit Court of Appeals, Second Cire-uit. No. 106.
RAILROADS-INJURY TO TRESPASSER ON TRACK-CARE REQUIRED.
April 4, 1899.)
A railroad company cannot be held responsible for running over a trespasser asleep upon its track, in the absence of wanton negligence on the part of its employes in charge of the train; and a recovery is not warranted by evidence showing that plaintiff's intestate, while drunk, lay down upon the track of defendant's road and went to sleep, and was run over and killed by a train, when the engineer and fireman were keeping a proper lookout, and saw the object, but at tlrst believed it to be merely a coat, and, as soon as they were neal' enough to distinguish that it was a person, used every effort to stop the train.
In Error to the Circuit Court of the United States for the Southern District of New York. H. W. Taft, for plaintiff in error. M. P. O'Connor, for defendant in error. Before WALLACE and LA.C011BE, Circuit Judges.