KING 'IJ. OHIO &: M. R. 00.
799
within the principles that justify an allowance laid down by the supreme court in Burnham v. Bowen, 111 U. S. 776, S. C. 4 Sup. Ct. Rep. 675, and entitle the petitioners to an order upon the receivers to pay the claims out of the income of the road. If the road should have no income, after the payment ot the running expenses, as I understand the fact to be, it may be doubtful whether an order should be entered to pay from the corpus of the property. But I express no opinion upon this last point, but respectfully refer it to the New York court, where the receivers were first appointed, and to which all such applications should be made. The relations of this court to the main controversy I regard as of rather an ancillary character. An order will be signed directing the receivers to pay the claim out of . the income, but not out of the corpus except upon the order of the supreme court of New York by which the principal receivership was created.
KING
and others v.
OHIO
& M. R. Co. and others.
(Oircuit Court, D. Indiana. November 10, 1885.) NEGLIGENCE-INJURY TO VESSEL PASSING THROUGH DRAW-PROXIMATE CAUS:&'
Former opinion, 24 Fed. Rep. 335, adhered to on rehearing.
Motion for Rehearing. Ferd Winter, for petitioner. Harrison, Miller &; Elam, for receivers. WOODS, J. For statement of case see original opinion, 24 Fed. Rep. 335. The motion for rehearing is predicated mainly on the proposition that the failure to open the draw of the bridge was not the proximate cause of the injury. It is insisted that that cause was the breaking of the boat's chain. That this was the direct and immediate cause there can be no doubt, and unless that breaking was attributable, proximately, to the negligence or fault of the respondent the motion ought to be granted. It was held on the former hearing that the managers of the boat were not bound to anticipate the breaking of the chain, and it i9 now insisted that the keeper of the bridge likewisEf had a right to suppose that the boat's machinery was in good condition, and sufficient to carry the boat safely to the Illinois shore. This argument tends to deny the negligence, rather than to show that it was not the proximate cause of the injury. It seems to me, however, to be fallacious in assuming that the conduct of the bridge-keeper and that of the managers of the boat must be viewed from the same stand-point, and that each was in this respect entitled to act on the same presumptions. It will not do to say that the latter had a right, either purposely or negligently, to keep ,the draw closed, on the supposition that the boat
800
FEDERAL REPORTER.
was staunch and manageable, and could be safely taken out of the danger to which his .act was exposing it. He had no right to try, or negligently to force others to try, such experiments. He knew, or ought to have known, that the boat was approaching in the reasonable expectation that the draw would be opened seasonably; and that a sudden and unexpected necessity for turning the boat about would involve (needlessly) a severe and perhaps unwonted strain upon the boat's machinery. It was, of course, an act of negligence, under the circumstances, to subject the boat to such a test of its powers, and the disastrous result was so plainly a natural consequence that the negligent party ought to have anticipated it, and therefore, under the doctrine of any of the various cases cited in argument, is responsible for the damages. No new and independent cause intervened, which, in itself, caused the injury. Motion overruled, and matter referred to master to assess damages.
UNITED STATES TRUST Co. v. (Oircuit Oourt, CEIVER.
NEW
YORK, W. S. & B. R. Co.
n.
New Jer8ey. December 19,1885.)
Where a railroad company borrows money and gives a mortgage upon all the property it then has or may thereafter acquire, the mortgagees are. en· titled to be protected as against all other and subsequent claims. But the courts, in appointing a receiver to take charge of the affairs of an insolvent company, impose conditions such as they deem just, respecting the payment of claims; and may require that the current earnings be applied to the payment of the running expenses, and the like.
2.
SAME-EQUITABLE LIEN-PAYMENT OUT OF THE EARNINGS OF THE ROAD.
Where a person has a claim against a railroad company for articles furnished to be used in the operating of the road, sold subsequent to the giving of the mortgage, which claim was not secured at the time of the appointment of the receiver, he will not be entitled to a decree of court declaring such claim to be an equitable lien upon the earnings of the road superior to the lien of the mortgagees, and to an order directirlg the receiver to pay same from such earnings.
On Petition of Howard Watch & Clock Company. Mr. Cromwell, Mr. "Hiller, and Mr. Hey, for petitioners. Wm. A. W. 'Stewart, contra, for complainant. NIXON, J. The petitioner in this case has a claim against the defendant corporation, amounting to $1,705.68, for clocks furnished to the company from October 1, 1883, to January 9, 1884, and prays the court to make an order that the said claim shall be decreed to be an equitable lien upon the revenues and property of said company, prior to the complainant's mortgage and all other liens, and shall be paid as soon as practicable out of the revenues of the said 'railway company, as the same may be received, or out of the mortgaged property of the corporation when sold on decree of foreclosure.
