JOHNSON V. CHICAGO, ST. P., M. & O. RY. CO.
as that deficiency was not determined until May 7, 1894, the statute of limitatioJ!l was not set in motion until that date. We are referred to the decision of the supreme court of Nebraska in Meehan v. Bank (Neb.) 62 N.W. 490, as determining that proposition. But examination of that case does not sustain the contention of learned counsel. All that is decided by that case is that in that state a creditor w40se debt is secured by mortgage may either sue at law on his debt or proceed by foreclosure; but, having elected which means he will adopt, and commenced proceedings accordingly, he must exhaust the remedy so chosen before resorting to the other. But this Nebraska law can have no extraterritorial operation. It cannot 8uspend the running of the Colorado statute of limitations. Unquestionably Mrs. Patrick might have sued Underwood in Colorado, on the cause of action now declared on, at any time after the maturity of the notes. It is not believed that such suit would have precluded her from foreclosing the mortgage on the land in Nebraska at the same time; but, assuming that it would, she had her election to do the one thing or the other, but her election could in no manner operate to deprive Underwood of any right under the statute of Colorado. She could not exercise her election to his prejudice, further than to bring suit against him immediately upon the maturity of the notes, which she had an undoubted right to do, if he was liable, as claimed, for any part of the purchase money of the land. It results that the lower court erred in instructing the jury to find a verdict for the plaintiff, and refusing to direct a verdict for the defendant. The judgment of the circuit court is reversed, and the cause remanded, with instructions to proceed in accordance with this opinion. So ordered.
JOHNSON v. CHICAGO, ST. P., M. & O. RY. CO. (Circuit Court, N. D. Iowa, W. D. June 7, 1899.)
RAILROADS-RIGHT TO FORCE TRESPASSERS FHOM TRAIN.
Where one attempting to beat his way persists in boarding a moving train, notwithstanding repeated warnings to desist, and he finally to drop from the cal' by the brakeman, and receives injuries, the railroad company is not liable.
At close of plaintiff's testimony the question was presented whether there was sufficient evidence to go to the jury, upon which the court ruled as follows. Hallam & Stevenson, for plaintiff. Wright, Call & Hubbard, for defendant. SHIRAS, District Judge. The question now presented to the court is whether, under the evidence adduced on behalf of the plaintiff, there is any ground upon which the plaintiff is entitled to go to the jury, or, to state the proposition in another form, whether the plaintiff's own testimony does not conclusively show that he is not entitled to a verdict against the defendant company, in which case it becomes the duty of the court to, instruct the jury that the verdict
94 FEDERAL REPORTER.
rmist'be'f"01' the defendant. "A cording to the plaintiff'j in, the pefs()nal injury of .the plain1iff occurred in thefol1()wing'I1lanner:The plaintiff, being iii. City, willhed to go search of work. , With that end he went to the yardsr bfthe and crawMdtlirough: the end door irito'a stoc,kear, which forltiedpart of a freight train that was about to leave the yards. Afte\.' thistrllin had proceeded some diBa brakeman thereon found'the ;plaintiff on the car, and, ,hn being informed byplaint'iff'that hewishM 'togo southwardly, he told plaintiff. that the train did 'not go' in thaf'direction, and that he must leave the trkinwhen it"reached the neXt station, which was Dak;ota City, diBtant some six miles ,or more from Sioux Oity. , Upon reachitlgtliat station,tpeplainti1'fleft tliattrain, and,'finding that it w()uld some hoursbefQre a Mrlth-boun<l'trUin would"p::tss through Dakot3;, City, he determined to returntQ 'Sioux City upon a freight train 'th,at'Bliortly'aftemardB went eastwarq." This train did not stop at but itnas'sed byithe at aislow rate of speed, it'came3:Iongthe plaiiitiff' Clh\l,bed 'on a on the side freight cars, where ,lie was discovered by a brakeman on tM train', who told hiInhe must get dff. traiii at the next station, to "'i1;;BbuthSlbux tl:iij! station was re¥Md, the plaintiff got uP.1Il on the dlsfan.ce frord,'thetra1n, until It started on Its jourttey,when 'heagam climbed UpbIj. the ladder, whence he was .:b'¢ by'the braltem,an. The'plain,fiff upon, the ground,arid then ran back one or two car lengths, and agam. mounted . li' ladde'i,' on the side of a car; when the nrnkeman, who back on top of the cars, again ordered him off, and:etlfdrc@ the order by climbing down on the ladder and tramping on plaintiff's fingers, and by kicki)lg plaintiff 011 the back of tpe head. thus forced off the train, which, actording to plaintiff's testimony,' was moving rapidly, and possibly at a speed of from 15 to 20 miles I an hour, the plaintiff. fell upon the ground in such a ,position that his foot was the train, necessitating an amputation of the leg .between the knee and ankle,joint.Tbe plaintiff testified that he had not pnrchaseda 'ticket, antlhis eviMnce clearly shows that he was engaged in beating his way along the defendant's railway, without .any, purpose of paying fare thereon., The retation, therefore, betweentbeparti,el:'i was not that of passenger and .carrier, Condran v. Railway Co., 14 C. C. A. 506, 67 Fed. 522. The evidence shows that the injury to the plaintiff was received b.:y him when he .was engaged in an unlawful treilpass upon the of thedefeno.ant company, and under circumstances which surely should preclude him from holding respoThS,i,ble for of his unlawful conduct. 1. am well aware of a trespasser IS not neceswithout the pale of the law, and that he may recover for injuries willfully ,PI' 'recklessly upon hi lll . Thus it is well company cannot be jnstifi'ed in evicting a person its trains when the same is in such rapid motion as to cause risk to the life or limb of the person eviCted, even thOugh he isa tI'ffipasser upon the train. The high
& )0. RY. CO.
regard which, in law, is placed upon the life and limb of a citizen, compels the company to exercise its right to evict a trespasser from its trains in such a manuel' l}.S not to, incur. the charge of willful or reckless disregard of the safety of the person evicted; but this rule should not be so applied as to absolve a' trespasser from the direct consequences of his own wrongful conduct. Tne plaintiff's testimony shows that when the of the defendant company discovered him on the train after he had wrongfully boarded it at Dakota City, they did not then evict him, butshnply warned hiin(hat he must leavu the train. at the next station. When this station was reached, and the train halted thereat, the plaintiff got down from the ladder on which was riding; but his subsequent conduct cleal'ly l'hows that he had no intention to obey"the proper request of the trainmen, but that it was his purpose to continue on the train in defiance of their instructions,' and to circumvent, if possible, their efIorts to keep him from again getting on the train, and thus committing a trespass on the property of the defendant company. The plaintiff himself testifies that he got off the laMer at South City he remained in close proximity to the train until it again started on its way, when he again mounted the ladder from which he had been warned by the brakeman; 'and when the latter again ordered him off the train he dropped down uninjured upon the ground, and then ran back one or two, Car lengths, and again mounted a car ladder, from which'the brakeman compelled him to drop by personal violence. The plaintiff's own testimony clearly shows that he voluntarily engaged in a running contest with the brakeman, in which the plaintiff was unlawfully endeavorin'g to force himself upon the defendant's train, and the br'ukeman was lawfully endeavoring to' prevent the trespass; and to hold thilt under such circumstances the railway company was a wrongdoer, and for that reason must respo:ud to the plaintiff for the personal injuries he thus brought upon himself, would bea travesty on all proper conceptions of the relative rights of the parties. No is better established than the one which holds that where a party, by his own want of proper care, causes or' aids incaus.ing an accidentan(i resulting injury to himself, he cannot recover from tbe other party, although the negligence of the latter was also a proximate 'cause of the accident. There can be no question, under the facts of'this case,that the plaintiff, by his own' willful misconduct,aided in bringing about the accident which caused the injury to himself. Notwithstanding the repeated warnings he had received from the brakeman, he persisted in his efforts to get upon the train after it was in motion, and by his own unlawful conduct he brought on the contest with the brakeman, and,he is not in any position to assert that he is free from responsibility in the premises. Under the circumstances of this case, I can' see no just ground upon which a verdict against the company can be sustained, and the defenaant is therefore entitled to an instruction to the jury to return a verdict in its favor.
'94 FEDERAl. REPORTER.
, In re BLUMBERG. (District 'Court,E. D. Tennessee, S. D. 1. 1899.)
BA1IIl'RUPTOY-J.)EBTS AFFECTED Bt DISOHARGE.,....JUDGMENTS 1111 AOTIONS FOR '
c Where, In an action for the prlceof,goods sold, property In the pos'sesslon'of a third person was attached, on an allegation tha,t it had been conveyed to hlQ! by the defendant IPI fraud of the latter's creditors. and sucb vendee, to obtain the release of the property executed a replevin bond With sureties, and judgment was rendered against him, which the sureties were forced to and he was then adjudged bankrupt, held, that the claim of such 'sureties against their principal, by subrogation to the rights of the original creditor, was not a "judgment in an ltction for fralld." within the meaning of Bankruptcy Act, § H (30 Stat. 550), providing that such jlidgments shall not be released by the bankrupt's disCharge; the language of the statute referring only to judgments In actions where the fraud of the bankrupt is the ground of action and basis of the right of recovery. '
WhHe a discharge in bankruptcy releases the bankrupt from a provable debt which is !lot within the excepted classes, and takes away the creditor's right to proceed :against him therefor in personam, it does not affect the lien of 11 valid attachment levied on the bankrupt's goods more than four months,before th,efiling of the petition in bankruptcy.
ON PRIOR ATTAOHMENT.
In Bankruptcy. , ' , .' in opposition to the' bankrupt's application for discharge were filed, as follows: '
& Dryzer, of Knoxville, in the county' of Knox and state of Tennessee, parties interested in the estate of H. Blumberg. bankrupt, do hereby oppose the granting to him of a discharge from his debts. aud for I/:rounds for ,.:nch opposition do file thefoUowlng specifications: The aebt of Shaplra & Dryzer against said bankrupt is one which arose from the following circumstances: .Two suits, we,re brought in the chancery court of Loudon county, Tenn., by Hamburger Bros. and Adams & Beyer, two creditors, of one Paletz, alleging that certain goods bel'onglng to Said Paletz had' been secreted and concealed by the said bankrupt, H. Blumberg; and others, with the Intention to cheat, wrong, and defraud said creditors of said Paletz. Under said bill the goods in the possess.ion of said Blumberg and others were attached, and at the solicitation of said H. Blumberg, the firm of Shapira & Dryzer, as sureties, signed a replevin bond for, said goods; . lind afterwards, on a decree being rendered against said Blumberg'and others, they signed the appeal hond as sureties. The court of chllnCe'I,'Y. appeals and the supreme court of Tennessee, in said causes, decreed that said pankrupt, H. Blumberg, and others, had committed a fraud in concealing goods, etc., and entered a decree against them; the final decree in the supreme court being :S-ovember 11, 1897. On this decree execution issued, and, on default of payment by said Blumberg and others, principals, said Shapira & Dryzer" as sureties, were forced to pay said decree, and are SUbrogated to the right of said original complainants in said cause. These creditors, therefore, represent to the court that said decrees are judgments obtained In actions for fraud, and are, therefore, such debts as are excepted from the operation of the bankrupt llct, , and are debts from which said banl,rupt cannot be discharged.. These creditors further show to the court that aboutli'ebruary, 18j}8, they filed an attachment suit at Jasper, Tenn., against said Blumberg and others, upon said indebtedness, and attached certain property 'alleged to belong to said Bankrupt, H. Blumberg; that saill attachment suit is now pending in the chancery court at Jasper, Tenn. They show that a discharge of said H. Blumberg might indirectly operate to affect the right of these creditors in said suit, as it might be pleaded therein by said bankrupt. Certified copies of the decrees of the court of chancery appeals and of the supreme court, and all other pertinent records, will be filed on or before