PREBLE V. BATES.
755
a bridge a half mile east of the crossing, cannot assign the violation of the st.atutory duty-consisting of not sounding the whistle or ringing the bell at the crossing-as the proximate cause of the injury which he sustained. The statute was not enacted for his benefit. Bell v. Railroad Co., 72 Mo. 58; Evans v. Railroad Co., 62 Mo. 57,58; Rohback v. Railroad Co., 43 Mo. 187. It is also true that the petition in the present case shows no necessary relation between the rate of speed at which the train was running and the injury which plaintiff sustained. The rate of speed may have been dangerous, considering the condition of the track, or for many other reasons, but the relation of cause and effect between a high rate of speed and hurt is not satisfactorily shown by the complaint. Conceding both of these propositions, we still think the complaint will stand the test of a general demurrer, which is all that has been filed. The plaintiff avers that he was employed as watchman on a bridge, and that it was his duty to pass over the bridge, from time to time, to inspect it; that it was the duty of all engineers in charge of locomotives tf} give timely warning to the watchman at said bridge of their approach, by sounding the whistle and ringing the bell; but that, on the occasion in question, the engineer of the train which occasioned the injury negligently failed to sound the whistle and ring the bell, 3S it was his duty to do, and, in consequence of such neglect, plaintiff was hurt. The complaint thus shows very clearly a violation of the common-law duty alleged. and an injury resulting from such neglect. On this ground we hold the petition good, and overrule the demurrer.
PREBLE
v.
BATES
et at August 23, 1889.) i
(Oircuit Oourt, D. Ma88achusetls.
1.
NEW TRIAL-NEWLy-DISCOVERED EVIDENCE.
In an action for conversion. of bonds. a witness testified that the words "the property of S." were written across the face of many of them. :Many witnesses testified fordefendants, who were stock-brokers, that snch bonds wonld not be a good delivery in open market. and the court charged that, if the bonds received by defendants were so marked. defendants would be chargeable with notice. Held, after verdict for plaintiff, that a new trial would not be granted defendants on the ground that an inspection of the bonds, discovered after the trial, showed no snch writing on their face. Defendants' evidence showed that they sold certain bonds for a third person in '1879, and while plainti.ff, on cross-examination. denied possession of these bonds. on direct examination she stated that certain of her funds were invested in that kind of bonds of,another sort in 187l:l. She seldom went to her safe. and may not have known abont these bonds. Held, that a verdict that such bonds were plaintiff's wonld not be disturbed.
2.
EVIDENCE-SUFFICIENCY.
At Law.
On motion for new trial.
7.56
FEDERAL,REPORTER, vol. 39.
Action by Sarah A. Preble against Henry 1\01. Bates.and others, stockbrokers, for .conversion of cert(lin bonds alleged to belong to plaintiff. Verdict for plaintiff, and defendants move for a new trial. Benj. F. B'I.{tler andL. C; SOl,thard, for plaintifi'. Samuel Hoar, for defendants. COLT,.T. The principal ground relied upon by the defendants in this motion for a new trial is newly-discovered evidence. At the trial, Edward Preble swore that on of the bonds belonging to his mother there was written across the face of them "the property of Saraq A. Preble," and that he had a recollection that it was written across the face of the five $1,000 Chicago sewerage bonds, which were a part of the property in controversy. To meet this, the defendants called numerous witnesses, who testified that such bonds would not be a good delivery in open market. The court charged the jury, in substance, that if the bonds received by the defendants were so marked they would be charged with notice, and, consequently, that they would be liable to account to the plaintiff for their value at that time. The defimdants, in support of this motion, now produce the original Chicago sewerage bonds, and, upon inspection, it appears that there was no such writing upon their face. The defendants contend that this evidence is not cumulative, because it is evidepce of a different character from any which was offered by their side at the trial upon this issue, and authorities are cited to the effect that cumulative evidence, strictly speaking, is evidence of the same kind, to the same point. Motions for a new trial are addressed largely to the discretion of the court. ·Without entering into the question of whethcr the defendants, in the exercise of proper diligence, could not have produced this evidence at the trial, I do not think, in view of"tbe evidence taken as a whole, that the defendants can fairly claim the right to a new trial on this ground. The direct evidence of Preble was not of a positive and couclusive character, and it· was so fully lllet by the defendants' evidence that it does not seem to me that the court should direct a new trial by reason of the,discovery of this additional evidence. The verdict in this case was general, but the jury handed to the court with the verdict a paper containing the special items upon which they heltl the defendants liable. I do not think, on a motion for a new trial, the court should reject this paper. It is perhaps the best evidence possible of the ground the jury took in arriving at their verdict. Comparing this paper with the evidence, it appears that the jury made a mistake with respect to two items. There was no evidence to support the finding of the jury as to one of the Chicago sewerage bonds, which did not come into the hands of the defendants, but which was sold by Edward Preble to another firm of brokers; nor as to one Minneapolis bond, which itappears was loaned to him by his mother in 1877. With respect to the $2,000 New York and New Englatld bonds, I do not agree with defendants that there was no evidence to support, the finding :of the jury. By the defendants' evidence, they sold for Edward Preble $2,000 of these bonds, on or about October 31, While Mrs. Preble. denied in
UNITED STATES V. COUNTY COURT OF KNOX COUNTY.
7.57
cross-examination the possession of any of these bonds, she stated on her direct examination that the proceeds of the Lewis notes were, about 1878, put into these bonds or into Southern Pacific bonds. Preble seldom went to her safe, and she may not have known about these bonds. Taking all the evidence together, I cannot say that the jury were mistaken in their finding on this item. The verdict was for $34,772.88, and there should be a remission of $3,636 ..53, covering the value of $1,000 Chicago sewerage and $1,000 J\!IinneBpolis bonds, with premium and interest, Bnd the plaintiff may elect to take judgment for $31,136.3.5, or a new trial will be granted. Cattle Co. v. 1l1Lmn, 9 Sup. Ct. Rep. 458 j Kennon v. Gilmer, Id. 696.
U::-;ITED STATES ex reI. HARSHMAN v. COUNTY COURT OF (Circuit Court, E. D. Missouri, E. D. 1. ApPEAT,- EFFECT-SUPERSEDEAS.
COUNTY.
September 25, 1889.)
Where a bill to modify the method of collecting a judgment which was not stayed by giving a s'upersedeas bond, as allowed by statute, was dismissed, and no interlocutory order affecting such judgment was ever made in the proceeding on the bill, a supersedeas bond upon appeal from such dismissal only stays any orders made in the proceeding on such bill, and does not operate to reo strain the collection of the original judgment, even though the proceeding on the bill be deemed a mere continuation of the original action. JUDGMENT-!NJUKC1'ION TO RESTRAIN-COLLECTION.
Where the original judgment has stood for eight years, and the debtor admits the justice thereof, merely seeking to change the method of collecting it, its collection will not be restrained pending the appeal from the dismissal of the bill.
At Law. On motion for rehearing. For former report, see 15 Fed. Rep. 704. Thomas K. Skinlcer ano John B. Henderson, for relator. James Carr, for respondent. , BREWER,J. In tbis case there is a petition for a rehearing. In 1881, Harshman recovered a judgment against Knox county. I That judgment has never been disturbed. No proceedings in error were taken, and no supersedeas bOnd given to stay the collection of that judgment within the 60 days allowed by statute, or, indeed, at any other time. Years after, there having been some intermediate proceedings on mandamus, the defendant in that judgment filed a bill in equity to restrain its collection, or perhaps more correctly to modify the method of collection. In that equitable proceeding no interlocutory order was entered, and when the matter came up for final hearing a decree was entered dismissing the bill. Appeal WBS prayed from that decree, allowed, Bnd appeal-bond fixed in the sum of $500, and given. Now the contention is 1 Not
reported.
