Volume 6 — Appeals, District of Columbia

Hearing on an appeal by a defendant indicted and convicted of the crime of bigamy. The Court in its opinion stated the case as follows: The appellant, John T. Knight, was indicted for bigamy, the charge being that he lived and was married in the city of Baltimore, Maryland, in the year 1859,-and that he married a second wife in the city of Washington, District of Columbia, in 1894, his first wife still living.

Hearing on an appeal by the defendant from an order overruling a demurrer to an indictment for keeping a gaming table and for keeping a certain place or booth for the purpose of gaming, contrary to the Act of Congress of January 31, 1883. The facts are stated in the opinion.

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in a suit for damages for personal injuries.</p> <p>The Court in its opinion stated the facts as follows ;</p> <p>This is an action to recover damages for an injury alleged to have been suffered by the plaintiff, Charles Walter, in consequence of the negligence of the defendant’s agents, under the following circumstances.</p> <p>The plaintiff and two other persons, late on the night of November 9, 1892, were driving in a buggy, eastwardly on F street northeast, in this city, towards their places of residence. They had occasion to cross the track of the defendant’s railroad, where it intersected F street, between North Capitol street and First street east. When they were in the act of crossing the track, a car or train of cars was backed southwardly on the track and struck and demolished the buggy, and the plaintiff was thrown out and badly injured. The declaration alleges that no notice or warning was given of the movement of the ckrs, and that the injury resulted from the want of proper care in their management and movement. The defendant filed the usual plea of not guilty.</p> <p>At the trial, upon the conclusion of the testimony for the plaintiff, the defendant’s counsel requested the court to instruct the jury to return a verdict - for the defendant, which the court refused to do.</p> <p>Testimony was then offered on the part of the defence, and upon its conclusion the defendant’s counsel moved the court, on all the evidence given to the jury, to instruct the j ury to return a verdict for the defendant. This instruction was granted, and an exception taken, upon which the case is brought to this court.</p> <p>The verdict was rendered on the 14th of February, 1894, and judgment entered on it immediately. On the 16th of February, a motion was made for a new trial, for errors of law in the rulings of the trial justice. On the ioth of March, the motion was overruled, and on the same day the plaintiff requested the clerk to enter an appeal from the order of the court overruling the motion to set aside the verdict, and to issue a citation for the defendant. A citation was issued on the same day, and served on the 14th of March, and on the 22d of the same month an appeal bond was filed and approved.</p> <p>In this court, a preliminary motion was made to dismiss the appeal, on the grounds, first, that it was taken more than twenty days after the rendition of the final judgment in the court below; and, secondly, that the appeal was not taken from that final judgment, but only from the order of the trial justice overruling the motion for a new trial, which was not appealable.</p>

<p>Hearing on an appeal by the complainant from a decree • dismissing a bill in equity for the ascertainment of a contract and for an accounting and an injunction.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The bill in this case was filed by the Washington Market Co. against the District of Columbia, setting up a contract with the District, under the charter powers- of the complainant, authorizing it to manage and control certain ground in the city of Washington, called the Wholesale Market. The prayers are :</p> <p>1. That the said contract may be ascertained and declared.</p> <p>2. That an account may be taken of the losses of revenue to complainant from unlawful interference with its rights, whereby its revenues were diminished, and for a decree therefor.</p> <p>3. That the defendant be restrained from attempting to prescribe rules and regulations for said Wholesale Market, from interfering with complainant’s revenues therefrom, and from attempting to obtain possession thereof by force or by action at law. Answer was filed, evidence taken, and upon hearing, the bill was dismissed.</p> <p>The Washington Market Company was incorporated May 20, 1870, by act of Congress. 16 Stat. pp. 124 — 133. The right of possession and use of the Central Market grounds, for ninety-nine years, was vested in the said company, and it was authorized and required to' erect certain buildings thereon and to collect revenues for their use as a market.</p> <p>This ground lies near the south side of Pennsylvania avenue, and between Seventh and Ninth streets, west, and is what has been known as the “Center Market” since 1802. The open space described in section 16 is separate and distinct therefrom.</p> <p>The only section of the act aforesaid which requires construction here, or about which there is any controversy, is section 16, which reads thus :</p> <p>“ Sec. 16. That the city government of Washington shall have the right to hold and use under such rules and regulations as the said corporation may prescribe, the open space at the intersection of Ohio and Louisiana avenues with 10th and 12th streets, as a market for the purchase and sale of the following articles, to wit, hay, straw, oats, corn, cornmeal, seed of all kinds, wood for sale from the wagon, cattle on the hoof, swine on the hoof, country produce sold in quantities from the wagon, and such other bulky and coarse articles as the said corporation may designate * * * marketing of the products named herein shall be excluded from Pennsylvania and Louisiana avenues and the sidewalks and pavements thereon.”</p> <p>At the date of said act, Washington was governed by a mayor and council under an old charter conferring the usual powers over streets, markets, etc.</p> <p>February 21, 1871, the act of Congress was passed creating a new government for the District of Columbia, the various powers of which were conferred upon a Governor and a Legislative Assembly, assisted by a Board of Public Works, of which the Governor was ex officio the President. See R. S. D. C., sections 2 to 96. (16 Stat. 423 et seq.)</p> <p>After taking possession of the grounds given it by its charter, the complainant claimed the right to control and manage the open space designated as a Wholesale Market by said sixteenth section, and on November 8, 1871, addressed the following letter to the Governor of the District:</p> <p>“Washington Market Co., November 8, 1871.</p> <p>“ Hon. Henry D. Cooke, Governor of the District of Columbia:</p> <p>“ Sir: — In section 16 of the charter of this company of May 20, 1870, the open space at the intersection of Ohio and Louisiana avenues with Tenth and Twelfth streets is assigned as a market for cattle and bulky and coarse articles to be sold in quantities from the wagon, and the marketing of such products in Pennsylvania and Louisiana avenues is prohibited.</p> <p>“ Notwithstanding this prohibition dealers are continuing to occupy Louisiana avenue in defiance of law and to the great injury of property holders on that avenue. This company has been unable to enforce the prohibition because the open space above referred to has not been properly prepared to enable dealers to occupy the grounds for market purposes as provided in the law.</p> <p>“ By the act of Congress the Washington Market Company is entitled to establish the rules and regulations which shall govern the market upon the open space, but it is a question whether or not it was the intention of Congress that this company should derive any income therefrom,</p> <p>“ Under these circumstances, to meet a pressing public necessity, this company proposes, with your permission, properly to grade the grounds and to place thereon suitable platforms of inexpensive construction, which will enable the marketmen to do business on the open space as contemplated by the act, charging them for the use of their stands such sums as you and the District authorities may prescribe, not to exceed the interest on the actual outlay and the actual expenditures for keeping the market in order.</p> <p>“ There can be no possible objection to this course of action, and we trust you will give it your approval at once, as there is a necessity for immediate action.</p> <p>“We have the honor to be, very respectfully,</p> <p>“T. C. Connelly,</p> <p>“Hallet Kilbourn,</p> <p>“Adolf Cluss,</p> <p>“Wm. E. Chandler,</p> <p>“ Committee of the Washington Market Company</p> <p>Upon this letter the following indorsement appears: “Approved, subject to such regulations as the Legislative Assembly may hereafter prescribe. (Signed), H. D. Cooke, Governor.”</p> <p>No action was ever had by the Assembly and there is nothing to show that it was ever brought to its attention.</p> <p>On April 8, 1872, the following communication was addressed to the Governor and Board of Public Works:</p> <p>“Washington Market Co., April 8, 1872.</p> <p>“To the Governor and Board of Public Works of the District of Colnmbia: The Washington Market Company is now in possession of the open space at the intersection of Ohio and Louisiana avenues with Tenth and Twelfth streets, in accordance with the sixteenth section of the act of Congress of May 20,1870, and the agreement made with the Governor ofthe District, as per arrangement of November 8,1871, as follows: (For letter of November 8,1871, see above in the this opinion). Since taking possession of the open space thus assigned for a wholesale market the company have purchased from the District authorities the buildings thereon belonging to the city of Washington; have suitably graded the surface, and have also commenced the erection of structures thereon necessary for wholesale market purposes, having already completed an open market or platform shed on the north side of B street over 200 feet long; also an open platform shed 200 feet long on the north side of the grounds, with eating house and storehouses, and have, in addition, made arrangements to erect a large open building for loads of hay, grain and wood, and suitable stables, pens and cattle yards, as soon as the concrete paving company, now occupying the western portion of .said ground, shall vacate the same ; all to be done to the satisfaction of the District authorities and in such manner as to furnish creditable accommodations for a wholesale market.</p> <p>“ In order to more effectually carry out the foregoing arrangement, entered into November 8, 1871, the company now propose to the Governor and to the Board of Public Works, which by law has control of the streets and avenues of the District, that the said company shall be allowed to collect of dealers in said, wholesale market the following sums: Each one-horse team, per day, $0.10; each two-horse team, .15 ; each three-horse team, .20; each four-horse team, .25 ; each head of neat cattle, .20; each cow and calf, .25 ; each swine, .05 ; each sheep, .05.</p> <p>“ The market company also to charge such reasonable rent for storage as may be agreed upon with the parties using their buildings.</p> <p>“ The company will also keep an office open at all hours of the day and night for the accommodation of dealers, where produce can be measured and weighed, and will furnish suitable watchmen to take charge of the market and collect the revenues thereof.</p> <p>“ From the revenues collected the market company will retain sufficient to pay all expenses of managing and keeping in repair and good condition the buildings and grounds, with ten per cent, annually on the cost of improvements (which are to be made at the company’s charge), and the company shall pay over to the District authorities the residue or balance of the revenue by them collected.</p> <p>“ If, by authority of Congress, the company should at any time be dispossessed of the use and occupancy of the market grounds, it shall be entitled to receive a fair compensation for its buildings and improvements thereon.</p> <p>“ Washington Market Company,</p> <p>“ By M. G. Emery, President.”</p> <p>Nothing more seems to have been done until April 26, 1874, when the following letter was received by the Market Company:</p> <p>“Board of Public Works,</p> <p>“District of Columbia,</p> <p>“ Washington, April 26, i8jp</p> <p>“ The Washington Market Company:</p> <p>“ In reply to your communication of April 8, 1872, I have to inform you that the board have this day passed the following vote: To approve the arrangement with the Washington Market Company, proposed in the company’s letter of April 8, 1872, relative to the open space at the intersection of Ohio and Louisiana avenues and Tenth and Twelfth streets, used as a wholesale market; this arrangement not to prejudice any lawful future action of the Board, of the Legislative Assembly, or of Congress.</p> <p>“ Very respectfully,</p> <p>“ Alex. R. Shepherd, Vice-President.”</p> <p>These letters are not found in the records of the District, and there is no minute of action taken thereon by either the Legislative Assembly or the Board of Public Works.</p> <p>Complainant introduced evidence to show that it had filled and graded the said grounds and erected wooden buildings and sheds thereon, which were used for market purposes under its regulations, and for which use it had collected revenues. It was also shown that the District Commissioners had interfered with their management, and had finally demanded possession and threatened ejectment proceedings.</p> <p>A claim for the sum of $27,167.02 was made out against the District in August, 1893, for erection of buildings, expenses, interest, etc.</p>

Hearing on an appeal by the plaintiff from a judgment ■on a verdict directed by the court. The Court in its opinion stated the case as follows: This is an action for damages for the negligent killing of Dora Stearman, on January 27, 1888, brought by her administrator, Louis Stearman, under the authority of the statute.

Hearing on an appeal by the plaintiff from a judgment on demurrer in an action by an administratrix for the death of her intestate by alleged wrongful act.

<p>Hearing on an appeal from a decision of the Commissioner of Patents in a patent interference proceeding.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the complainant from a decree dismissing a bill for specific performance.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill to compel the Commissioner of Patents to issue a patent to complainant.

Hearing on a motion to dismiss an appeal. On behalf of the appellees, James S. Edwards and Clarence F. Norment, a motion was made to require the appellant, Richard B. Norment, to print the entire record in this case, and in default thereof to dismiss the appeal for failure of the appellant to comply with Rule 18 of this court as to printing the record.

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District, on demurrer to an information charging him with a violation of the act of Congress of March 3, 1893, regulating the liquor traffic.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from an order of the Supreme Court of the District of Columbia, holding a special term for Orphans’ Court business, denying a petition for a partial distribution of an estate, and to require the executors to give an additional bond.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on a motion to dismiss an appeal.</p> <p>The facts are sufficiently stated in the opinion.</p>

Hearing on an appeal .by the plaintiff from a judgment on a verdict directed by the court in an action of libel. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action for damages for death by alleged wrongful act.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an appeal from a judgment recovered by the administrator of the estate of William Golway, deceased, against the appellant, for the negligent killing of said intestate, at a point on its railway in the city of Washington, June 11, 1888.</p> <p>The accident occurred on the railway track in Water street, or what would be Water street if improved, at a point between what would be East 14th and East 15th streets, if improved, to the Eastern Branch of the Potomac across Water street. The railway crosses the Eastern Branch and enters the city somewhere between south L and M streets and curving to the right and west runs about 2,500 feet to where it enters a tunnel which ends near 6th and K streets.</p> <p>For a considerable distance each side of where deceased was killed the hill and banks on the north side of the track are very high and the streets are not opened through them and across, the tracks. But the evidence shows that some footpaths coming down the hill _ converge at or near that point, and had been used for many years before the building of the railway to obtain access to the river where there had been a feriy landing; and that they had been constantly used after the building of the railway by persons, desiring to go to the river bank and upon the commons adjacent. At this path crossing there were three railway tracks. The most southern one was used by trains going east, or out of Washington, the next one by trains coming in, and the third was a siding on which cars were frequently left to stand. There was also a similar track beginning a little east of where deceased was killed and running north •of east to a warehouse, part of the way up the hill. The main tracks, made a considerable curve at that time, about 450 feet east of the path crossing, and the evidence tended to show that a train coming from that direction could probably be seen from 375 to 450 feet therefrom. There was .also testimony tending to show that the distance from whence it could be seen was much less than 450 feet, especially when cars were standing on the siding, which seems to have been the case at the time of the accident.</p> <p>Deceased, accompanied by his wife and three young ladies, Miss Grimes and two Misses Shelton, had left his home on the north side and gone across the tracks at .another place, late in the afternoon, visiting the new gas works and walking on the commons. They returned by way of the path crossing aforesaid, intending to go by the warehouse at the end. of the switch track. As they neared ■the tracks a train passed, going east, for which they waited .and then started across. Mrs. Golway and Miss Grimes were in front, and crossed the tracks safely. Deceased was just behind them and was in the act of stepping off and away from the center track when he was struck by the bumper of the engine of a west-bound passenger express train and instantly killed. The Misses Shelton were in the rear and had not quite reached the track when the engine came. Plaintiff’s evidence tended to show that the train was running from 30 to 40 miles an hour and that the parties neither saw nor heard it coming; nor did they hear any signal of warning save the whistle which sounded about the time the engine struck deceased.</p> <p>On behalf of defendant there was evidence. tending to .show that the train was not running faster than 25 miles an .hour, and was on regular time ; that the bell had been rung without cessation from the time of passing Bennings Station; that deceased was seen as the engine came around the curve and the whistle was sounded ; that he got off the track and then turned and started back, at which time it was too late to stop, although the brakes were immediately applied. The regulations of the District Commissioners, in force since 1887, prohibited the running of trains at a rate of speed exceeding 12 miles an hour.</p> <p>[At the trial, seven instructions were requested on behalf of the plaintiff, all of which were granted over the objection of the defendant as follows :</p> <p>“1. If the jury find from the evidence that the locality at which-this injury occurred was, and for a long time before and since the construction of the defendant’s railroad had been, open ground or a common frequented by the public ; that there were well-defined pathways, used by the public in traversing the said grounds and in passing up the adjoining hillside to the level ground above with the knowledge of and without the objection of the defendant; that the deceased and those accompanying him had been on these grounds or common and were passing along these pathways which had been intersected by defendant’s road ; that these pathways were the ordinary and usual places or lines in travel for pedestrians passing along and through the locality mentioned ; that the deceased and those accompanying him were passing along these usual lines or paths for the purpose of going from one side of defendant’s road to the other ; that the place aforesaid was within the limits of the city of Washington ; that the defendant’s roadway, by reason of the topography of the country at the place where said road crossed the said pathway, was such that a view of the approaching train could not be had for a greater distance than from fifty to four hundred and fifty feet, and that the defendant company ran. the train which caused the injury, within the limits of the city of Washington as aforesaid, at a rate of speed from twenty-five to forty miles an hour, these facts, if they are facts proved by the evidence, together with all evidence touching any signals that may have been proved to have been given and all the other facts or circumstances proved in the case, are to be considered by the jury in determining whether the defendant was guilty of negligence, and if you find that defendant was so guilty, in the absence of evidence showing that the deceased contributed to the accident by his own negligence, which caused the loss of his life, it would be the duty of the jury to find for the plaintiff.</p> <p>“ 2. The jury is instructed, as a matter of law, that the defendant had no right to run its train inside the limits of the city of Washington at a greater rate of speed than twelve miles an hour, and if the jury find from the evidence that by reason of the curvature of the road at or near the point in question the train could not be seen approaching' the point where the injury happened and where the pathway crossed the railroad, alluded to in prayer No. I, for a greater distance than from about three hundred and fifty to; four hundred and fifty feet, and that the topography of the country was such as to interfere with or tend to prevent knowledge of the approach of a train by either noise made by the train or by the whistling or ringing of the bell, and if the jury further find from the evidence that the place in question was one that was frequented by the public, and that the place in question was one where the public was accustomed to pass and repass and had been for many years before defendant’s road was built, since the building of said road and at the time of the accident, with the knowledge of and without the objection of the said defendant, then from these facts, if they are established by the evidence, and that no signal was given of the approach of the train, the jury would be justified in finding that the defendant was guilty of negligence in running its train at the place in question at a higher rate of speed than that which was permitted or authorized by law in such cases.</p> <p>“ 3. If the jury find from the evidence that there was within about three hundred and fifty to four hundred and fifty feet from the place where the decedent met his death, a curve in the road around the point of an elevation, which elevation was of such a character as that it prevented persons crossing the track at the places referred to from seeing the train until it had approached within the distance aforesaid, and which also tended to prevent persons who might be crossing the track at that place from having notice of the approach of the train by the sound made by the train or by the blowing of the whistle or the ringing of a bell; and if the jury further find that the place at which the accident occurred was one that was commonly used by the public as a crossing with the knowledge of and without objection by the defendant, then it was the duty of the defendant to exercise greater care and use greater precaution in running its trains at that place than would have been required if there had been no such crossing; and if the defendant ran its train around said curve at a rate of speed in excess of the speed authorized by law, such facts would tend to show that the defendant was guilty of negligence in so running its train, and if from all the evidence the jury find that the defendant was guilty of negligence their verdict should be for the plaintiff unless the evidence shows that the deceased was guilty of contributory negligence.</p> <p>“ 4. If the jury find from the evidence that at the locality where this accident occurred there were and for a long time prior to the construction of defendant’s road had been well-defined pathways along which the public was accustomed to travel; that these pathways were crossed or intersected by defendant’s road; that the deceased and those accompanying him were travelling along these pathways where the public were accustomed to travel with the knowledge of and without objection by the said defendant, then the jury is instructed as a matter of law that the deceased had the right to cross the defendant’s road along the line of said pathway and was not a tresspasser upon the defendant’s property in so doing.</p> <p>“ 4%j. The jury are further instructed that the burden of proving that plaintiff’s intestate was guilty of contributory negligence is upon the defendant, and in the absence of proof to the contrary the law presumes that plaintiff’s intestate was exercising reasonable and proper care and caution at the time he was killed.</p> <p>“ 4^. If the jury find from the evidence that the place at which the deceased was killed was within the limits of the city of Washington; that for a long time prior to the construction of defendant’s road there had been pathways along which the public had been accustomed to pass and which had constantly been used by the public; that the said pathways were intersected by the defendant’s road ; that after the construction of the defendant’s road the public continued to use such portions of pathway and in the use thereof were accustomed to cross said road of defendant with the knowledge of and without objection by the defendant, then it was the duty of the defendant to take and use all reasonable precautions to warn the public of the approach of trains at such crossings, and a failure of the defendant to do this would warrant the jury in finding that the defendant was guilty of negligence, and in determining whether there was or was not such negligence the jury should take into consideration the topography of the adjacent country and obstacles that may have been placed there by the defendant, and what, if any, signals were given of the approaching train and the time they were given if they were given.</p> <p>“ 5. The jury is instructed that if they find for the plaintiff, the measure of damages is the pecuniary loss sustained by the widow and next of kin by reason of the death of the deceased ; that in estimating damages the jury are to take into consideration any prospective inheritance the widow and next of kin of the deceased might reasonably have expected to derive from him, any prospective support that would have been received, and also the value of his parental advice and guidance, and this is to be considered with reference to ány minor child who was living with him in so far as the jury may be able to fix a pecuniary value upon it. To such extent as the jury may find that they were of pecuniary value you will take that pecuniary value into account in estimating the damages, and in estimating the damages with reference to the items of prospective inheritance, gifts and legal support, maintenance, the health and strength of the deceased and his advice and counsel, the jury should take into consideration the nature of the employment of the deceased and the remuneration therefor, together with the prospective duration of his life.”</p> <p>On behalf of the defendant, the following twelve instructions were requested, those numbered from i to 6 of which were granted and the others refused, to the refusal of each of which the defendant duly excepted :</p> <p>“ i. Before the jury can find a verdict in favor of the plaintiff they must be satisfied from the evidence that the defendant was guilty of negligence, which was the direct cause of the accident, and the burden of proof is upon the plaintiff to show by evidence satisfactory to the jury that the defendant was guilty of such negligence.</p> <p>“ 2. If the jury shall be satisfied from the evidence that the intestate, Golway, was guilty of any negligence contributing directly in any degree to the accident, then the fact that the train-which caused his death was running at a high rate of speed is wholly immaterial and should not be considered by the jury, and the verdict must be for the defendant.</p> <p>“ 3. It was the duty of the plaintiff’s intestate before he attempted to cross the railroad tracks at the time and place in question to look bpth up and down the railroad for approaching trains, and also to listen for such trains; and if the jury shall be satisfied from the evidence that said Golway neglected to so look or listen, and that in consequence of such neglect he was struck and killed, the plaintiff cannot be allowed to recover, and the verdict must be for the defendant.</p> <p>“ 4. Although the widow and children of the deceased may be entitled to great sympathy for their loss, yet under the statute which created this right of action the damages are confined entirely to pecuniary loss, and nothing can be estimated or allowed against the defendant in this action on account of any sympathy or compassion to which such widow and children may be entitled.</p> <p>“ 5. And in estimating such damages the jury are limited to the consideration of pecuniary loss entirely, and nothing can be estimated or allowed for the shock, the grief, or mental pain or suffering of the widow or children and nothing can be estimated or allowed for the loss of the society of the deceased nor for the pain or suffering of the deceased nor for funeral or other expenses, and nothing can be estimated for punitive or exemplary damages or smart money against the defendant because it is a railroad company and its train caused the death of the plaintiff’s intestate.</p> <p>“ 6. If the jury shall find for the plaintiff, then the measure of damages will be the amount of pecuniary loss actually sustained by the widow and children left surviving the deceased by the reason of his death; but the burden of proof rests upon the plaintiff to satisfy the jury by evidence that said widow and children of the deceased did by reason of such death sustain pecuniary loss and the extent thereof.</p> <p>“ 7. The jury are instructed that the fact that there were high banks along the north side of the railroad track extending from the east side of the cold-storage warehouse around northward to the curve cannot be considered by them as evidence tending to prove negligence on the part of the defendant company.</p> <p>“8. It was the duty of the plaintiff’s intestate, before he attempted to cross the railroad tracks at the time and place in question, to look both up and down the railroad for approaching trains, and also to listen for such trains, and if the jury shall be satisfied from the evidence that said plaintiff’s intestate neglected to so look and listen the plaintiff cannot be allowed to recover, and the verdict must be for the defendant.</p> <p>“ 9. The jury are instructed that the defendant was not required by law to exercise any greater degree of care in. running its trains at the point of the accident because of the use by the public of a foot-path across its tracks at that point than it would have been had there been no foot-path there.</p> <p>“ io. Although the jury may be satisfied from the evidence that the defendant’s train at the time of the accident was moving at a greater rate of speed than is allowed by regulations, yet that fact cannot in this case be considered against the defendant as evidence tending to prove negligence.</p> <p>“ii. Although the jury may be satisfied from the evidence that there were several freight cars standing on the siding near the cold-storage warehouse, and that they more or less obstructed the view from the point of the accident, yet that fact cannot be considered by the jury as evidence tending to prove negligence on the part of the defendant.</p> <p>“12. On the whole evidence in the case the defendant is entitled to the verdict.”</p> <p>The court below, after stating the facts, of its own motion charged the jury as follows :</p> <p>“ The act of Congress referred to in the declaration provides sub stantially as follows :</p> <p>“ ‘That whenever, by an injury done or happening within the limits of the District of Columbia, the death of any person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such a§ would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, négneglect, or default causing such death, to the widow and next of kin of such deceased person; provided, that in no case shall the recovery under this act exceed the sum of ten thousand dollars; and provided further, that no action shall be maintained under this act in any case when the party injured by such wrongful act, neglect or default has recovered damages therefor during the life of such party.</p> <p>“ ‘ Sec. 2. That every such action shall be brought by and in the name of the personal representative of such deceased person and within one year after the death of the party injured.’ 25 th Statutes at Large.</p> <p>“ The action which the plaintiff has commenced and which is set forth in the declaration, as I have stated it to you, is authorized by the act of Congress which I have read, and, in so far as it is limited by the provisions of that act of Congress, those limitations and the provisions of the act must be strictly observed by the court and the jury in the trial of the cause.</p> <p>“ There are a number of propositions which it will be necessary for you to consider in your retirement, most of which propositions are indicated by instructions which counsel have prepared and have asked the court to give, and the court having considered the prayers that have been asked by counsel for the plaintiff and for the defendant, has concluded upon the giving of those which it is proper to give as the law to govern your action in this case. I know of no better way than to give you the instruction which has been proposed by the parties and to make any further or additional remarks that may seem to be pertinent and proper.</p> <p>“ The first prayer asked on behalf of the plaintiff is given to you as the law of this case and is as follows:” The court here read the instruction referred to and proceeded :</p> <p>“ You will perceive, gentlemen, that this states a number of'propositions or matters to which your attention should be. called because of the evidence in the case (and if you find from those circumstances and all other circumstances shown by the evidence in the case, if any are omitted, that the defendant was negligent, and you further find that the deceased, Mr. Golway, was not negligent himself and did not contribute to his own death by his own negligence, and that the defendant was negligent), then you should find a verdict for the plaintiff.</p> <p>“ The second prayer for the plaintiff is given to you as the law of this case. It is very nearly akin to the first instruction given to you and is as follows: ” The court here read the instruction referred to.</p> <p>“ Perhaps I can state this proposition in a few words. (It is a statement of at least some of the circumstances which the evidence developed surrounding the situation at the time of this accident. You are instructed to take those circumstances into consideration and all the circumstances which are developed by the evidence as being present at the time of this accident, and if, under such circumstances, you find that the defendant ran its train which came into collision with the deceased at a greater rate of speed than twelve miles per hour, you will be authorized to regard that as negligence on the part of the defendant, and that is the only conclusion that you are asked to come to from this instruction. It defines the conditions upon which you would be entitled to consider the running of the train at a greater rate of speed than twelve miles an hour as amounting to negligence. As to whether or not that negligence, together with any other negligence there may be in the case, or that you may find in the case, if you find any other negligence, amounts to such negligence as, in your judgment, contributed directly to the death or directly caused the death of the decedent, Golway, it is for you to determine from this fact and all the other facts in the case. It is intended to be a demonstration of the circumstances under which you would be entitled to. regard the running of the train at a greater rate than twelve miles an hour as a negligent act on the part of the defendant to be of such weight as you may think proper to give to it in connection with all the evidence in the case upon the final question as to whether the defendant was guilty of negligence which caused the death of the deceased Golway.)</p> <p>“ The third instruction asked for by the plaintiff is given to you as the law of this case, and is in the following language : ” The instruction referred to was here read by the court.</p> <p>“The next instruction which I will read to you is number four and a-half for the plaintiff, which is given to you as the law and is as follows : ” The court here read the instruction referred to and proceeded :</p> <p>(In connection with this instruction, gentlemen of the jury, you may consider the evidence as to whether any signals were given, as to whether the bell of the engine was rung, ‘and, if so, when and where, at what time, and at what distance from the point of this crossing; if it was done at all, whether it was done, in your judgment, at such time as the exercise of ordinary care and prudence would require in order to prevent accidents or danger to human life. There is some evidence pro and con, and you will consider that evidence in that connection and determine for yourselves what the fact regarding the giving of signals is ; and when you have determined what was the fact and whether what was done was what was required of the defendant under such circumstances with reference to the exercise of ordinary care and prudence in the running of that train so as not to injure persons who might be there crossing the tracks or in the neighborhood of the tracks, so as to suffer injury at that point.)</p> <p>“ I will give you now number four and a-quarter and number four of the plaintiff's, as the law of this case, as follows : ” These instructions were here read.</p> <p>“ The prayers which I have read to you are those which have been granted on the application of the plaintiff and are to be regarded by you as the law. I now proceed to give you some prayers which have been asked by the defendant and granted by the court.” Defendant’s instructions numbered I, 2 and 3 were here read, and the court proceeded.</p> <p>“You will see, gentlemen of the jury, by comparing these prayers which I have given you for the plaintiff and defendant that there is no conflict between them. The instructions which I have given you, as prayed by both parties, require that before you shall give a verdict against the defendant you must find that the defendant was guilty of negligence which contributed to and caused the death of the deceased, and, in addition to that, before you can return a verdict for. the plaintiff for such negligence, if you shall find that the defendant was guilty of such negligence which caused the death of the deceased, you must find that the evidence does not show that the plaintiff was guilty of what is called contributory negligence — that is, not guilty of such negligence as contributed directly to cause his own death.</p> <p>“ It is true that the plaintiff is only bound to prove the negligence of the defendant, and upon so proving the negligence of the defendant may rest and claim a verdict at the hands of the jury unless his own evidence shall disclose that he was himself negligent or that in this case the deceased was negligent in such manner as that his own negligence contributed to cause his own death. If the plaintiffs evidence discloses that, then the defendant may avail himself of it and object to a verdict, notwithstanding his own negligence. If it be found by the jury that the plaintiff’s evidence shows that he was negligent, it would be the duty of the jury to return a verdict for the defendant; but the defendant having offered its evidence in this case, if the jury find from the evidence in the whole case, both that offered by the plaintiff as well as that offered by the defendant, that the defendant was negligent, and that negligence contributed directly to cause the death of the deceased, and shall further find from the evidence that the deceased was also negligent and failed to adopt such precautions for his own safety as a man of ordinary care and prudence should adopt in such a place and under such circumstances as he was placed in at that time, then the plaintiff would not be entitled to a verdict, and it should be your duty to return a verdict for the defendant.</p> <p>“ (If in looking at all of the circumstances in the case and all of the evidence in the case, both for the plaintiff and for the defendant, you fail to find any evidence which either proves to you that he did use the precaution or that he did not use precaution, the presumption would be, as I have instructed you at the request of the plaintiff, that the deceased was prudent, there being no evidence to the contrary, and the rule of law being that it is the duty of the defendant to produce the evidence showing, the negligence on the part of the deceased. Where a plaintiff is living and brings an action for his own injury, then it is on the part of the plaintiff. In this case it was the duty of the defendant to procure evidence to show that the deceased was negligent and did not conduct himself in that situation as a man of ordinary prudence and caution would have done.)</p> <p>“You will thus see, I think, pretty plainly your duty in this case. It is not for the court to discuss the evidence. The evidence is not so very voluminous. You have listened to it carefully. It has been discussed, and your attention has been called to it by counsel for the plaintiff and for the defendant and your minds have been refreshed in that respect. It is for you to remember the testimony and to apply to the testimony and to the consideration of the testimony such rules of law as the court gives you in its charge and to come to your conclusion as to what your verdict should be — either for the plaintiff or for the defendant.</p> <p>“If you shall find, upon a fair consideration of this evidence, that the defendant was guilty of negligence contributing directly to the death of the deceased, and that the deceased was not himself negligent, but acted as an ordinarily prudent man would under the same circumstances, or if you find that the defendant has failed to prove and that there is not disclosed in the evidence of the plaintiff any evidence of facts or circumstances from which you can infer that the deceased was negligent, then it will be your duty to return a verdict for the plaintiff and against the defendant.</p> <p>“It will then become your duty to determine what damages you shall give to the plaintiff. In that connection I give to you prayer number five asked by the plaintiff, which is as follows: ” The court here read the instruction referred to.</p> <p>“ There are some instructions upon the question of damages which are asked by the defendant, which I also will give you.” Defendant’s instructions numbered 4, 5 and 6 were here read.</p> <p>“ It is probably proper to remark to you that it is not necessary that the plaintiff should prove exactly in dollars and cents the amount of pecuniary loss which the widow and children sustained by reason of the death of the deceased. It is only necessary that their relations be shown; their situation in life, their ages, the age of the deceased, his state of health, his ability to labor, his ability to earn money, and his ability to make money might also be given in evidence for the purpose of enabling you to determine, as men of judgment and observation, how much in your judgment, taking the probable length of his life and his ability to make money and the advantage in a pecuniary way he would have been to his widow and children had he lived — how much damage, in your judgment, looking at all these circumstances, the widow and children have suffered by reason of the death of the father and husband.</p> <p>“ Having reached a conclusion as to that amount which no one can direct you in coming to a conclusion about, you should return your verdict. It is left to your sound judgment, looking at all the circumstances, as to what the amount should be, and when you have found that amount that sum should constitute your verdict in favor of the plaintiff.</p> <p>“As I have read to you in the prayers given to you in charge at the request of the defendant, you cannot allow anything on the ground of sympathy for the bereaved children and widow; you cannot allow anything for their suffering or for their sorrow in the loss of the husband and father. The statúte does not allow it, and you have not the power to do so, and if you should do it you would do it wrongfully and without authority of law. You cannot allow anything for medical services, funeral expenses, or any matter of that kind, but simply what the statute in express language says'you may allow for, and that is the pecuniary loss or the loss of the value of the life of the husband and father to the widow and children. That value you must ascertain in the manner in which I have stated. It is a matter of sound discretion and judgment, looking to his age, his’ state of health, and his ability to earn money and what it might arid in your judgment probably would have amounted to had he been permitted to live.”</p> <p>The portions of the charge enclosed in parentheses were excepted to by the defendant. — Reporter.]</p>

<p>Hearing on an appeal by the defendant from a judgment on verdict’in an action to recover damages for personal injuries.</p> <p>At the trial, the plaintiff requested two instructions to the jury, both of which were granted over the objection of defendant, as follows:</p> <p>“1. If the jury believe from the evidence that the plaintiff, in attempting to run around an engine or train approaching 9th street from the west at or about the time of the accident, was exercising that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity, and that he was prevented from seeing the train approaching from the east by cars standing on defendant’s tracks on the open space east of 9th street, which cars had been or were being there unloaded, and that he did not see the said train coming from the east until it was too late for him to get out of the way of the said engine or train approaching from the west without imminent danger of being run over, and should further find that in a reasonable effort to avoid such danger he fell or was thrown upon the track along which the said train was approaching from the east and was thereby injured, then the plaintiff is entitled to recover in this action.”</p> <p>“2. If the jury find from all the evidence that the plaintiff is entitled to recover in this action, then they shall award such damages as in their judgment will fairly and reasonably compensate him for the injury sustained by him in the past which they may find established by the testimony and for such prospective injury as they may find frotn the evidence will be the natural and probable consequence of the injury and for the pain and suffering caused to him by said injury as the jury may find to be established by the evidence.”</p> <p>The defendant presented the following ten prayers for instruction to the jury, those numbered 2, 3, 4, 5 and 10• of which were granted, and the others refused, to which refusal the defendant duly excepted, as follows:</p> <p>“1. On the whole evidence submitted to the jury in this case the defendant is entitled to a verdict in its favor.</p> <p>“2. If the plaintiff got on board the south-bound passenger train as it was going south along Maryland avenue, and fell off of the said train and thereby was injured, he cannot recover and the defendant is entitled to a verdict in its favor.</p> <p>“3. If the jury shall be satisfied from the evidence that the plaintiff in this case was engaged in stealing a ride on the outgoing passenger train described in the evidence at the time of the accident, the verdict must be in favor of the defendant.</p> <p>“4. If the jury shall be satisfied from the evidence that the plaintiff did approach the south-bound passenger train going south; described in the evidence, for the purpose of getting upon it as it passed him, and whilst standing alongside of the train for that purpose fell, and in consequence of such fall received the injury complained of, then and in that case the defendant is entitled to a verdict in its favor.</p> <p>“5. The jury are instructed that before they can find a verdict against the defendant railroad company they must be satisfied from the evidence that the defendant or its agents was guilty of negligence, and that such negligence caused the accident; and the jury are further instructed that the burden of proof is upon the plaintiff to show to the jury by satisfactory evidence that the railroad company was guilty of such negligence.</p> <p>“6. If the jury shall be satisfied from the evidence that the plaintiff was proceeding north along and on Ninth street towards the crossing at the intersection of 9th street and Maryland avenue, and that when he approached towards said avenue he saw a freight train going east drawn by a locomotive engine, about to cross said 9th street, and that he then left 9th street and ran east in order to cross the ■track in front of and ahead of said engine and freight train, and that he did so cross in front of said engine, and that during the time he was crossing his head was turned towards and he was looking at the approaching engine, and that when he had so crossed the track ahead of said engine he encountered a passenger train, which was going south on the most northerly track, the engine of which train had already passed him, and that while he was between the said trains he received the injury of which he complains, he cannot recover and the verdict must be in favor of the defendant.</p> <p>“7. The jury are instructed that although they may be satisfied that there were cars standing on the tracks between 8th and 9th streets at the time of the accident to the plaintiff, still that fact cannot be considered by the jury as evidence of negligence on the part of the defendant.</p> <p>“8. The jury are instructed that the fact that cars were standing on the tracks on Maryland avenue between 9th and 10th streets at the time of the accident cannot be considered in this case as evidence of negligence on the part of the defendant.</p> <p>“9. If the jury shall be satisfied from the evidence that the plaintiff was proceeding north along and on 9th street towards the crossing at the intersection of 9th street and Maryland avenue, and that when he approached towards said avenue he saw a freight train going east, drawn by a locomotive engine, about to cross said 9th street, and that he then left 9th street and ran east in order to cross the track in front of and ahead of said engine and freight train, and that he did so cross in front of said engine, and that during the time he was crossing his head was turned towards and he was looking at the approaching engine, and when he so crossed the track ahead of said engine he encountered a passenger train, the engine of which train had already passed him, and that while he was between the said trains he received the injury complained of, then, in that case, the jury is instructed that it is immaterial whether or not cars were standing on Maryland avenue between 8th and 9th streets, or 9th and 10th streets, and the fact that cars were standing in either of the spaces mentioned cannot be considered by the juiy as evidence of negligence on the part of the defendant or its agents.”</p> <p>The court, of its own motion, charged the jury as follows, the portions of the charge enclosed in brackets being excepted to by the defendant:</p> <p>“ This case, as it now stands, is the case of Joseph W. Webster against the Baltimore & Potomac Railroad Company. The suit was originally instituted by Joseph W. Webster, by his next friend, Julia F. Webster, against the Baltimore & Potomac Railroad; but Joseph W. Webster, to whose use the suit was commenced; has, since the commencement of the action, become of age, and the suit is now prosecuted by him in his own name. I understand counsel to claim that the action is tried upon the third count of the declaration and to say that the third count embraces their cause of action.</p> <p>The third count, which is an amendment to the original declaration, charges that the defendant is a corporation owning and operating a railroad running through the city of Washington, upon certain streets in said city, and passes over tracks, sidings and switches which were located upon and known as 6th street, S. W., in said city, and extended from the depot of said defendant corporation down said 6th street into and along Maryland avenue, S. W., crossing and intersecting 9th street, S. W., and said avenue; that said defendant corporation also maintained and used, on and before said nth day of December, A. D. 1884, a large number of railway tracks, sidings and switches to wit, four tracks and nine switches, on a certain open space or reservation formed by the intersection of said Maryland avenue with Virginia avenue and C street, S. W., on which said tracks and sidings, on said nth day of December, A. D. 1884, and for a long time previous thereto the defendant was accustomed, wrongfully, improperly and unlawfully to store freight and other cars in great number, to wit, to the number of fifty at one time, and to leave the same so stored for an unreasonable length of time, frequently for the length of thirty-six hours at a time ; that heretofore, to wit, on the said nth day of December, A. D. 1884, the plaintiff, while attempting to cross said Maryland avenue at its intersection with 9th street, S. W., upon the public highway, in said city aforesaid, as he had a right to do, was prevented by a train of cars drawn by a locomotive engine, approaching from the west, along one of said tracks operated by said defendant, and thereupon attempted to avoid and did avoid said engine by entering upon said open space or reservation as he had a right to do, but before getting across the more northerly-of said tracks on said open space and at a distance eastward from 9th street, of, to wit, forty feet, he was thrown down and caused to fall by a train of cars drawn by a locomotive engine approaching from the east upon defendant’s track, then and there under the direction and control of the defendant, through the carelessness and negligence and improper and unlawful conduct of the servants of said defendant, so that by means of the premises and the further carelessness and negligence of the defendant in not providing any warning of the approach of said engine and train of cars and in not properly guarding said track at said crossing and by the wrongful and unlawful storage on said open space of a large number of freight cars as aforesaid, thereby preventing the plaintiff from seeing the said engine and train of cars approaching from the east, o'ne of the wheels of one of said cars passed over the foot of the plaintiff and so crushed and injured it that the same had to be amputated, and the plaintiff was otherwise greatly bruised, wounded and injured, and by reason thereof he became and was sick, sore and disordered for a long space of time, to wit —, during all of which time the plaintiff suffered and endured great pain and has been rendered permanently disabled and thereby prevented from engaging in occupations yielding money, which he might and otherwise could have done, to the damage of the plaintiff in the sum of twenty thousand dollars.</p> <p>“To this declaration the defendant has pleaded the general issue or put in the plea of not guilty, the effect of which is to impose upon the plaintiff the burden of proving by a preponderance of the evidence all of the material averments in the declaration — that is, all those averments in the declaration necessary to be proved in order to maintain his action, which he has set forth in this declaration I have read in your hearing.</p> <p>“ [It will be necessary for the plaintiff, gentlemen, to prove that the defendant had upon this reservation described in the declaration the tracks alleged in the declaration ; that upon these tracks there were cars parked or placed, and that the plaintiff in passing from the south and intending to cross these tracks was prevented by these cars from witnessing the approaching train or noticing the approaching train from the east. It would seem, however, from the testimony of the plaintiff himself that he was attracted by reason of the smoke from the engine to the train approaching from the west, and whether that was all that was necessary or essential for him to notice in passing across the track of the railroad is a matter for you to determine ; whether, if the cars had not been there, he would have had a full view of the train and could have determined more accurately the exact distance it was away from the place where he was approaching the track, and whether that in anywise interfered with him or .caused the injury which he received is a question for you to determine in connection with all the testimony in the case.]</p> <p>[“ It would appear from the evidence that a train was approaching at about the same time from the east. It ap-peared further that the injury was caused by one of the wheels or more than one of the wheels attached to this train approaching from the east passing over his leg. It is claimed by the plaintiff in this case that it is shown by the evidence that these cars were parked upon the south track, at least, of the railroad, on the east of 9th street, in such manner as that it prevented the plaintiff from discovering the fact of a train approaching from the east until after he had passed over these two tracks between two cars that were separated some little distance east of 9th street, and as he was passing over the third track from the south — that would be the first one on which he could, had he endeavored to do so, have seen this train — and that -his attention having been previously attracted to the approaching train from the west, and he having no intimation of the train approaching from the east he, at that point of time, as he testifies, I believe, was devoting his attention to the train approaching from the west — you will remember his statement about it — until he reached some point — the exact point I will not undertake to state — when he looked and saw that there was a train passing from the east which would intercept him and prevent him from passing entirely beyond the railroad tracks until this train had passed.]</p> <p>[“ It is claimed on the part of the defendant that the plaintiff, if he had passed through in between the cars that were upon the first and second tracks, the most southerly tracks, could have seen this train, if he had looked at the approaching train from the east, and could have prevented this injury by remaining south of the third track — that is, south of the track upon which the train was approaching from the west — and not have passed over the track until after the trains had passed. It is further argued, I believe, by counsel for the defendant, that the plaintiff might have, according to his own testimony, after passing over the track on which the freight train was approaching from the west, safely, so far as that train was concerned, or at least having 'passed over it before it reached the point where it passed while he was situated between the two trains — at this point he might have so conducted himself as to have been uninjured by standing erect or falling down upon the ground between the two tracks.</p> <p>“You heard the statement of the plaintiff in relation to his recollection of the matter and as to what he did, so far as he remembers. There is a point of time at which he states that he became confused for some reason and he is unable to state now what it was. He says that he does not recall what he did, but only recollects that he was thrown, and that he received the injury.]</p> <p>“ In all of these cases, gentlemen of the jury, there are certain elements entering into them and into every trial which it is well that you should'understand and which it is proper that I should endeavor to explain to you. A defendant can only be held liable in this action upon the proof that the defendant was negligent in regard to its duty, and that .such negligence directly caused the injury of which the plaintiff complains. It must not be some remote negligence, but some negligence which directly causes the injury, and if it does appear in this case that the defendant was negligent, and that its negligence directly caused the injury of which the plaintiff complains, and yet if the plaintiff was also negligent in such way that his own negligence contributed directly to cause his own injuries, then the plaintiff cannot recover, because where a plaintiff is himself negligent and that negligence contributes directly to his injury it is impossible to apportion what degree of negligence would be attributed to the plaintiff and what to the defendant, and in such cases the law provides that the plaintiff shall not recover; so that it must be a case in order to authorize you to return a verdict for the plaintiff where it appears that the defendant has been negligent in the manner which is charged against him in the declaration and where that negligence has contributed directly to the injury of which the plaintiff complains, and it must appear that the plaintiff has not himself been negligent in such way as to contribute directly to his own injury.</p> <p>“ In this case there is another element to be considered by you in reference to this very matter of which I have just spoken. The law very justly and properly looks to the status of the parties. If the plaintiff is a person of unsound mind or an infant of tender years, not having reached the years of discretion or accountability, the law will také that into account and will say that you cannot hold such a person to the strict rule of care and prudence that would apply to an adult person possessing the intelligence that men usually have; but in such a case the jury are to look carefully to see to what extent the faculties of mind and judgment of the plaintiff are undeveloped, or, if there is unsoundness of mind, to what extent that would probably interfere with any proper action of a prudent character on the part of the plaintiff so as to excuse the plaintiff for not having manifested all the care, prudence, and judgment that an ordinary person of ordinary intelligence of full age should have exercised. In such cases it is the duty of the court to direct the jury to determine from all the evidence the extent of the knowledge, intelligence and judgment possessed by the plaintiff in a particular case and to adopt such a rule with regard to holding him accountable for the exercise of prudence and care as in their judgment would be just in a particular case depending upon what the evidence shows as to the knowledge, ability and development of judgment of the plaintiff.</p> <p>“ That will be your duty in this case. [The plaintiff in this case was a boy. I believe the evidence shows that he was not quite twelve years of age — a few months less than twelve years of age. From the evidence you will probably be able to form an estimate of how well developed he was intellectually and what knowledge he had of the railroads and the running of trains and matters of that sort. It will be for you to say how far a boy of that age, under the circumstances in which the evidence shows this plaintiff was placed — how far, if at all, he, in the first place, failed to exercise such care and prudence as an ordinary person would exercise, if you find that he did fail to exercise such care and prudence as an ordinary person would have exercised. Then it will be your duty to determine whether or not because of his age and want of full judgment and full knowledge and intelligence of an adult person — an ordinary adult person possessing ordinary faculties — whether upon that account, in your judgment, he should be excused for any failure that you may determine from the evidence existed with regard to what he himself did before he received the injury or at the time he received it. If you should find that, taking into view the capacity of the boy, as shown by the evidence, his age, that he was not guilty of any such imprudence as could be regarded as a fault upon his part, his age considered and his faculties considered and his knowledge and intelligence considered, then if you shall find that the defendant was guilty of negligence in the manner charged in this declaration by so placing cars apd leaving them parked upon the tracks between 8th and 9th streets as to have prevented him seasonably from noticing the approaching train from the east, and in consequence of that he received his injury, then the defendant would be liable to respond in damages to the plaintiff for the injury.]</p> <p>“I have been requested by the plaintiff to give you the following instruction in the charge, which I do, although it covers substantially the same ground I have already stated.” The court here read the first instruction granted on behalf of the plaintiff</p> <p>“ There are some prayers which have been requested by the defendant which will also be given.” The court here read the instructions numbered 2, 3, 4 and 5, requested on behalf of the defendant, and proceeded:</p> <p>“ If you shall find that the defendant was guilty of negligence and that such negligence caused the injury to the plaintiff and that the plaintiff was not himself responsible for the injury, then it will be your duty to find a verdict for the plaintiff and to assess the damages to which he is entitled. On that subject I am asked by the plaintiff to give you an instruction which, I believe, is a fair one and which, perhaps embraces all that it is necessary to say on that subject.” ' The court here read the said instruction.</p> <p>“You will see by this instruction that you are to give fair and reasonable damages for the injury, looking to the evidence to determine in your own minds what the injury is and to what extent it will be an injury to the plaintiff, as well as the extent to which it has already injured him, and also for the pain and suffering, as shown by the evidence, which you may fairly infer he suffered in consequence of this injury which he is shown to have received. I think of •.nothing further to say to the jury.”</p> <p>Mr. Totten-. “In the closing address particularly, your lionor, the argument was insisted upon that the railroad -company had violated some law or some duty in putting -down at this point and maintaining as many tracks as there were there. For that reason I desire to submit this propo.sition to the court to be given to the jury:</p> <p>“ The jury are instructed that the defendant company .had the lawful right to put down, maintain, and use the four railroad tracks on Maryland avenue at the junction of said avenue with 9th street, in addition to the passenger or most northern track.”</p> <p>Mr. Maddox: “ For the purposes of this case and so far as that instruction is concerned we do not object to the number of tracks, but to the unlawful use of them.”</p> <p>The Court: “This instruction, not being objected toby counsel for the plaintiff, will be given :</p> <p>“The jury are instructed' that the defendant company had the lawful right to put down, maintain, and use the four railroad tracks on Maryland avenue at the junction of said avenue with 9th street, in addition to the passenger or most northern track.</p> <p>“ That is true.. [It is not claimed, as I understand it, by the plaintiff in this case, or if it was claimed I did not notice it, that the tracks were unlawful at that point. But the claim is that there was „an unlawful and improper use made of the tracks by placing cars upon the tracks to the right and to the left of 9th street where it crosses the tracks, there to remain until unloaded, in some instances, and there remaining to the injury of the plaintiff by preventing him from seeing approaching trains when he was approaching the track for the purpose of crossing. The ■claim is that they had no right to leave cars upon those tracks on the right and left of 9th street, thereby impeding the view of the plaintiff and others who might desire to cross and preventing them from seeing approaching trains. That I understand to be the ground of the plaintiff’s claim. It is for you to say whether that was shown to be so from the evidence and whether in fact that had anything to do with the injury which the plaintiff received.</p> <p>“ If you find from the evidence that the placing of those ■cars on these tracks to the right of 9th street directly ■caused the injury which he received and prevented him from discovering the train until it was too late for him to lake care of himself, and if you find that he is not in fault, under the instructions which I have already given you, it will be your duty to return a verdict for the plaintiff.”]</p> <p>The further material facts will be found stated in the opinion.</p>

Hearing on an appeal from a decree on a bill of inter-pleader. The Court in its opinion stated the case as follows: This is a bill of interpleader filed by the Expressman’s Mutual Benefit Association against the executor of James Littleton, deceased, and his children and grandchildren. James Littleton was .a member of the association and he died testate January 25, 1893.

Hearing on a petition for a writ of mandamus to require a trial judge to settle and sign a bill of exceptions.

<p>Hearing on an appeal by the petitioner from an order discharging a writ of habeas corpus and remanding petitioner to the custody of the warden of the jail.</p> <p>The Court in its opinion stated the case as follows :</p> <p>The appellant, George R. Tolman, has been committed to the custody of the appellee as warden of the District jail, for contempt in the disobedience of an order of the Supreme Court of the District requiring him to pay certain alimony to his wife, Eva R. Tolman. She instituted suit against him for permanent alimony, and therein, on May 2, 1892, an order was made directing him to pay her $50 per month, besides certain sums as counsel fees. An appeal was taken from that order to this court.</p> <p>The appeal involved the question of the jurisdiction of the court to make a decree for permanent alimony grounded upon causes other than those upon which, judicial separation or divorce a mensa et thoro could be decreed by the ecclesiastical court of England, and also the reasonableness of the amount of the allowance as made. The order appealed from was affirmed November 6, 1893. See Tolman v. Tolman, 1 App. D. C. 299.</p> <p>The record showed that the husband, George R. Tolman, was an employee of the United States Government in the Life Saving Service at Washington, receiving an annual •salary of $1,800, payable monthly, besides which he is an architect, from which profession he also derives some income. With respect to the amount of the allowance, this ■court, speaking through the Chief Justice, said: “ That ■depends largely upon the extent of the delictum and the pecuniary circumstances of the husband. It is mainly a matter of discretion in the court below, though a judicial and not an arbitrary discretion. A court of appeals must see clearly that the allowance is excessive before it will interfere to reduce it. In this case, looking to all the disclosures made in the pleadings, we cannot say that the allowances for support pendente lite, and for counsel fees, are excessive. In view of the salary received by the defendant, these allowances would seem to be reasonable.”</p> <p>The execution of the order was suspended by the appeal, and it was not complied with. On December 14, 1893, Mr. Justice Hagner, holding the special equity term, passed an order requiring the said George R. Tolman to show cause on December 22, why he should not be committed for contempt for failing to comply with the decree of May 2, 1892.</p> <p>Hearing was set for February 28, 1894, at which time respondent filed an answer under oath. Nothing more seems to have been done in the matter until February 12, 1895, when he was again ordered to show cause on February 16. Respondent answered the rule under oath, wherein, after disclaiming any intention or purpose to disobey the court, he says that he has been “ ready and willing to receive the petitioner and to make an ample provision for her wants and necessities according to his full obligations under the law,” and that he made her such an offer in good faith, which she declined. He says further that he wrote petitioner in September, 1894, in good faith expressing a desire that she should resume her residence with him ; that she came to Washington in November and saw him, and he then and there repeated his offer “ to receive the petitioner and resume residence with her and provide for her support,” which she rejected, protesting her hatred of him, etc. He says that he is still ready and willing to receive and support her.</p> <p>The answer concludes with the following paragraph :</p> <p>“ The respondent is at present and has for months past been unable, because of want of means, to respond to the requirements of the said order of May 2nd, A. D. 1892, and because of his absolutely necessary expenses, which were not made in order to defeat the said order, he is now in a financial condition rendering it impossible for him to pay the petitioner a greater sum at this time than $40.00, which he tenders himself ready to do, protesting, however, that, as he is advised and believes, his obligation further to comply with the said order became, in equity, at an end with his tender aforesaid, on the 28th day of February, A. D. 1894, to receive the petitioner and piovide for her as his wife.”</p> <p>The first answer filed contains the following statement excusing respondent from payment on account of want of means:</p> <p>“The respondent since the said 2nd day of May, 1892, and since the filing of the petition herein, has been in receipt of a salary as an architect in the employ of the United States Government, to wit, in the office of the Life-Saving Service of the Treasuiy, of eighteen hundred (1,800) dollars per annum, which said salary has constituted and still constitutes the sole resources of the respondent, being for the months from May to Decembr, inclusive, of the year 1892, and for the year 1893 the sum of three thousand dollars ($3,000) in all. During the said time the respondent has expended in legitimate and necessary expenses for his support and the support of a parent, in part dependent upon him, a sum slightly in excess of the said sum of $3,000, of which the sum of $650 was expended in a trip taken upon the advice of his physician, and necessary for the restoration of his health and the prevention of serious physical consequences to the respondent, if not of his complete physical breakdown from disease. Another portion of the said sum of $3,000 has been expended by the respondent in the purchase of books and other articles essential to him in his profession as an architect, and in order to properly maintain himself in the discharge of his duties aforesaid, upon which his livelihood wholly depends. The main portion of the said sum of $3,000 has been expended by the respondent in paying for his lodging and maintenance, and none of it has been wilfully or improvidently expended. The respondent’s appeal having, as aforesaid, been pending since, to wit, the said 2nd day of May, A. D. 1892, until and in-eluding the said 6th day of November, A. D. 1893, and a previous rule upon him to show cause why he should not be adjudged in contempt for not obeying the order aforesaid of the 2nd day of May, 1892, in reference to the payment'of moneys for the support of the petitioner and her counsel fees having been discharged with costs, he bona fide believed himself to be under no necessity to make provision against the possible affirmance by the said Court of Appeals of the said order of the 2nd day of May, A. D. 1892, aforesaid, and he is now wholly without the means to gratify and meet the requirements of the said order if the same be construed to require that he shall forthwith and at once pay the sum total accruing under the said order of the 2nd of May, A. D. 1892, since its date. He professes and hereby tenders himself ready and willing to abide by and perform whatever order the court may deem proper in the premises looking to the support of the petitioner, but he protests his inability otherwise to comply with the order of the court in the premises.”</p> <p>An affidavit of respondent’s brother, filed with his answer, showed that he had called on the said Eva Tolman in January, 1895, on behalf of respondent; that she had told him she did not believe respondent’s offer was sincere and did not know what kind of treatment she would receive ; “that she did not want to live with him on terms of merely passing the time of day, although she would expect no affection from him and had none for him; that she was afraid of the treatment she might receive at his hands and feared to live with him.” That she had at other times said if the courts should decide against her she would accept respondent’s offer and live with him. That she said also she did not need money from respondent, as “she had always gotten along herself and always could do so.”</p> <p>On the hearing Mr. Justice Hagner made the following order:</p> <p>“On this 16th day of February, 1895, ibis ordered that if the defendant shall pay to the complainant, through her counsel, on or before the 19th inst., at 10 o’clock, six hundred dollars, the full amount of one year’s allowance for alimony under the decree of this court, he will be relieved from the operation of the rule passed herein on the 12th of February, but that if he shall neglect to make such payment he shall be committed to the custody of the marshal as for a contempt of the order of this court.</p> <p>“ It is further adjudged and ordered that upon the payment by the defendant of said sum of six hundred dollars by the time herein limited, together with the costs of this rule, the defendant shall be at liberty to apply to this court for a modification of the amount of alimony heretofore fixed by the court according to the course of this court.” This order not having been obeyed, the respondent was taken into custody under the following additional order: “On the motion of the complainant’s solicitor this day filed in court, it is this 19th day of February, 1895, ordered that the marshal take into his custody the body of the defendant, George R. Tolman, and the same to safely keep until the further order of this court, as for a contempt in refusing to obey the order passed herein on the 16th day of February, 1895. ' A. B. Hagner, Associate Justice.”</p> <p>A petition for a writ of habeas corpus was immediately filed and granted, but on hearing before Mr. Justice McComas, the writ was discharged and the petitioner remanded to the custody of the warden. From this judgment the appeal has been taken, and it seems that petitioner has been admitted to bail pending the same.</p>

<p>Amendment of Pleadings ; General Issue ; Release of Claim for Damages.</p> <p>1. The granting of leave to file additional pleas is within the discretion of the trial court as matter of amendment of the pleadings, and is not subject to review on appeal.</p> <p>2. In an action for damages for personal injuries, releases by the plaintiff are admissible in evidence under a general issue plea of not guilty.</p> <p>3. Quaere whether an employee may by pre-contract, independent of a subsequent release, exonerate his employer from liability for injuries resulting from negligence or otherwise.</p> <p>4. But a release by an employee of his employer of all claims for damages for injuries resulting from an accident occurring during the employment, is valid and binding although based upon such a pre-contract.</p>

Hearing on an appeal by the complainant from a decree sustaining a demurrer to and dismissing a bill to enforce a mechanics’ lien. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the defendant from a judgment on verdict in an action for damages to the rental value of real estate. The Court in its opinion stated the case as follows : This is a suit to recover damages for injury to the rental value of certain real estate in square 268, in the city of Washington, alleged to have resulted from the unlawful occupation of the adjacent streets by the appellant.

<p>Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit in ejectment, instituted in the Supreme Court of the District of Columbia by the appellants as plaintiffs to recover possession of certain undivided interests in a tract of land known as Rosedale and Isherwood, situated in the District of Columbia and adjoining the northeastern boundary of the city of Washington, from which they claimed in their declaration, filed on September io, 1892, to have been unlawfully ejected by the appellee on August 1, 1892, and to be still by him unlawfully excluded therefrom. The declaration was twice amended, the last amended declaration, upon which the trial was had, having been filed on March 27, 1894. To each of them the defendant pleaded the general issue, “ not guilty.”</p> <p>At the trial, as appears from the bill of exceptions, the plaintiffs first offered in evidence from the land records of the District of Columbia the transcript of a deed of conveyance from one William A. Bradley to one Ann Bartlett, dated on November 8, 1828, and recorded the same day, which purported to convey the real estate mentioned in the declaration, as well as other real estate; and thereupon counsel for plaintiffs announced that they proposed to prove that the plaintiffs and defendants traced their respective titles to the land in controversy from said Ann Bartlett as common source of title. Counsel for the defendant then and there denied that they held from any common source of title; and no proof whetever was offered of any such common source.</p> <p>Two depositions were then read in evidence on behalf of the plaintiffs to show who were the heirs at law of Ann Bartlett; that Ann Bartlett was married on September 17, 1828, to John L. Bartlett, at New Brunswick, New Jersey, who, it seems, was her second husband; that she died on April 3, 1876 ; that her said husband survived her, and died in New Jersey on September 24, 1884; and that her heirs at law were the same persons who are mentioned as grantors in these several deeds that were thereafter offered in evidence on behalf of the plaintiffs, and were refused by the court.</p> <p>Upon the cross-examination of these deponents, and of the plaintiffs themselves, who testified as witnesses in the case, it was sought to be shown that the suit itself and the deeds referred to were the result of a champertous agreement between the plaintiff, Leo Simmons, and the heirs of Ann Bartlett.</p> <p>Three several deeds were then offered in evidence on behalf of the plaintiffs, two of which were merely ancillary and intended to complete the principal deed. This principal deed purported to be a conveyance in fee simple from the heirs of Ann Bartlett to Ezra J. Peck and Leo Simmons, the plaintiffs in this cause, of all the real estate in the District of Columbia devised to them by inheritance from said Ann Bartlett, but in trust, however, for certain specified purposes, stated in the deed itself as follows:</p> <p>“ In trust, nevertheless, to and for the following uses and purposes, namely, to take and hold possession of the said real estate, and to institute and prosecute to a final conclusion in their own names any and every action, suit or proceeding in law, and in equity, or otherwise, however, for the possession of said real estate, if in their judgment expedient, and to compromise, pay for, and purchase any outstanding claim or title against said real estate, if in their judgment expedient, and generally to do any and every thing in their judgment expedient, which may be necessary to vest in them a perfect and unencumbered title in fee simple to and the recovery of possession of said real estate and upon the vesting in them of a perfect and unencumbered title in fee simple, and the recovery of the possession of said real estate or before and without the same, and without such proceedings, acts and doings as they may think best, and at any time to sell and convey said real estate, or any part thereof, in fee simple or in any quantity of estate or estates to any person or persons, and for such price and upon such terms as they may in their best judgment consider for the interest of the parties concerned and upon such sale or sales to convey the title sold to the purchaser or purchasers without liability- on the part of the purchaser or purchasers to see to the application of the purchase money and out of the purchase moneys or the full amount said property may sell for, it is distinctly understood between the parties to this indenture, that the said Leo Simmons, one of the trustees or parties of the second part, shall retain 33}4 Per cent., or one-third, after paying all expenses, costs and expenditures of the said parties of the second part, in the execution of this trust, out of the same, and the other two-thirds or 66 J4 per cent, of said purchase money, clear of any cost or charges whatever, to pay the heirs of said Ann Bartlett, their heirs or assigns, according to their respective interest, and it is further understood between the parties to this indenture, that should Leo Simmons die iffter suit has been begun for the recovery of any of said property, and before a settlement shall have been made, then in that case, the court having jurisdiction shall appoint a trustee to act in his stead and pay over to the heirs or assigns of the said Simmons such profits as he would have been entitled to after paying said cost and expenditures.”</p> <p>To the introduction of this deed in evidence objection was made on the part of the defendant, on three several grounds: i. Because it was not executed, at least not completely executed, until after the suit was instituted — the deed, although bearing date on October 20, 1891, not having been recorded until November 23, 1892, which was upwards of two months after the institution of the suit (September 20, 1892.) 2. Because it was not recorded within six months after its date, and was, therefore, as it is claimed, insufficient to pass title; and 3. Because the deed on its face was champertous, and therefore void.</p> <p>Without expressing any opinion on the first or second ground, the presiding justice, in a very able opinion which is given in the brief of the appellee, sustained the objection on the third ground, held that the deed was plainly champertous in its character, and therefore excluded it from the evidence. It is a peculiar fact in this connection, although perhaps not important in the view which we take of the case, that the paper offered in evidence by the plaintiffs was not the original deed, although that must have been in their possession, but the transcript from the land records of the District of Columbia. This has been made a ground of objection to the deed, together with the grounds assigned in the record, in the argument before us.</p> <p>In the oral testimony adduced on behalf of the plaintiffs it was shown that the plaintiff, Leo Simmons, it was who discovered the alleged interest of the heirs of Ann Bartlett in the property in controversy; that he had caused his discovery to be communicated to them ; that he procured the execution of the foregoing deed to himself and Peck; that Peck was the husband of one of the heirs; and that he was joined in the deed as joint grantee with Simmons for the reason that the heirs wanted in the trust a person whom they knew, while Simmons, who was a stranger to them, should have the active management.</p> <p>To the action of the court in excluding from the evidence the deed to Peck and Simmons, the plaintiffs duly excepted. Their counsel then -“announced to the court that the refusal of the court to admit the aforesaid records in evidence broke the continuity of plaintiffs’ title, and that they would therefore rest their case.” The court thereupon instructed the jury to return a verdict for the defendant, which was accordingly done; and to this also the plaintiffs excepted. There was judgment for the defendant on the verdict; and from this judgment the plaintiffs have appealed.</p>

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action to recover damages for personal injuries.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellee, James W. Hunter, was in the service of a milling firm on August 12, 1891, as driver of a grain wagon. It was a large wagon drawn by three mules, two at the wheel and one in front. He was on his way from the railway depot with a heavy load of grain, to the mill in Georgetown, driving along Massachusetts avenue. Defendant’s railway runs along Fifth street, N. W. At the intersection, an electric car ran into the wagon, breaking down a front wheel, and throwing Hunter to the ground, He sustained a compound fracture of a leg and other injuries. The juiy found in his favor and gave him a verdict lor $2,500, upon which judgment was rendered.</p> <p>[At the trial, one Bowman, a witness on behalf of the plaintiff, was allowed, over the objection of the defendant, to testify as to the apparent speed of the car at the time of the accident.. To this ruling, the defendant excepted, and the exception forms the basis of the first assignment of error.</p> <p>At the close of all the evidence, the defendant prayed the court to direct a verdict in its favor, upon the grounds, ■first, that there was a fatal variance between the allegations ■of the declaration and the proof, the declaration alleging that no signals or warning were given by the defendant of the approach of the car, and that the plaintiff did not see or hear the car, and his own testimony being that while he heard no bell he saw the car, and the other witnesses in his behalf testifying that the bell was rung by the motorman ; and, second, that there was no sufficient proof of negligence to entitle the plaintiff to recover. But the court refused the instruction, and the defendant excepted.</p> <p>On behalf of the plaintiff, seven instructions to the jury were granted as follows, to each of which exception was ..taken on behalf of the defendant:</p> <p>“1. If it appears from the evidence that Massachusetts avenue and Fifth street N. W. crossed or intersected, and that in consequence thereof and of the construction and operation of the Eckington and Soldiers’ Home Railroad by ■electricity the crossing was rendered to conveyances and persons driving teams unusually dangerous, it was the duty ■of the railroad to have guarded and protected the crossing from collision or accidents by the employment of watchmen ■or flagmen or other reasonable instrumentalities, and if the defendant failed to do so and because of such failure the plaintiff was injured as set forth in the declaration, he should have a verdict in his favor, provided you shall further find that the plaintiff was not guilty of negligence which directly contributed to cause his own injury of which he now complains.”</p> <p>“ 4. The defendant or the employees or its servants must be presumed to have understood the machinery of the cars of the defendant and of the agency used in propelling the cars, and of the velocity with which they were propelled, and in view of these facts it was specially obligatory on them to look out for pedestrians or vehicles on the street, and especially at crossings of streets, and, among others, at Massachusetts avenue and Fifth street N. W., and if they failed to seasonably perform this duty, and as a consequence the plaintiff was injured as set out in the declaration, he is entitled to a verdict in his favor if he was not also guilty of negligence or want of reasonable care and prudence.”</p> <p>“6. If the jury believe from all the facts and circumstances of the case in evidence- that the plaintiff, while in charge of a team of mules attached to a wagon, and while driving along Massachusetts avenue N. W., in the city of Washington, entered on Fifth street'for the purpose of driving across it, and that he did so with common care and prudence, and without negligence on his part, with the wagon of the plaintiff and the team in his possession, they were run into negligently by one of the cars of the defendant and the plaintiff thrown from his seat and as a consequence injured, he is entitled to recover, and the verdict should be in his favor.”</p> <p>“ 8. If the jury believe from the evidence and circumstances of the case that the plaintiff acted without reasonable care and caution in entering on Fifth street N. W., in the city of Washington, and in attempting to cross it when and as he did, or as a car of the defendant appeared (if it did) at or near I street N. W., and in this respect was guilty of negligence; yet if the jury further believe from the evidence and. circumstances of the case that the defendant, by the use of reasonable care and prudence on the part of its motorman or the conductor, when advised of the perilous position of the plaintiff and after seeing the same, could have prevented or avoided the collision or accident which led to or produced the injuries of the plaintiff and failed to use such care and prudence, the plaintiff would be entitled to a verdict in his favor.”</p> <p>" 9. Fifth street is one of the original streets of the city of Washington, laid out and dedicated to the use of the people of the District of Columbia and the United States, including travel on foot and by vehicles, and this right cannot and has not been taken away by the act of Congress authorizing the defendant, ‘ The Eckington and Soldiers’ Home Railroad,’ to use the street, and the cars of the company can only run on said street with due regard to the rights of others on the street and not to their exclusion or by any paramount right or claim, and if the jury believe from all the evidence that the car of the plaintiff was running at or hear the spot of the collision with unnecessary velocity or without reasonable care and caution and in consequence came in contact with the wagon or mules driven by the plaintiff while he was moving cautiously and with reasonable care and prudence over Fifth street N. W., going west or to Georgetown, and because of or by the contact or collision he was injured in his body and sustained a compound fracture of his leg and other injuries, as testified to, he is entitled to recover damages for the injuries received by him.”</p> <p>“ 12. It is for the jury to consider the credibility of witnesses, and in doing this they may have regard to the bias of the witness as manifested in their evidence, if any; their connection, if any, with the parties by employment or interest ; their condition for correct observations or their power to note and observe, and the manner of testifying, and they may give the greatest weight to the witnesses who appear the least biased from employment or interest with either party, the most capable of calm observation and notice of occurrences, and who are most composed and tranquil in their manner of giving evidence. They may note the manner of the witnesses, their candor and apparent honesty and intelligence, and give to each witness such credit and weight as in the judgment of the jury each may be entitled to receive.”</p> <p>“ 13. If the jury find in favor of the plaintiff they must consider and decide what amount of damages he is justly entitled to. In determining this they may consider the nature and extent of his injuries, the degree and amount of his suffering at the time of his injuries and immediately thereafter and up until the present; the expenses, medical and otherwise, which he has incurred in being relieved from his injuries, and what the effects of his injuries will be in the future.”</p> <p>The defendant presented nine requests for instructions to the jury, the first of which was modified by the court and granted as modified; those numbered 3^,5 and 6 granted as prayed, and those numbered 2, 3, 4, 7 and 8 refused, to which refusal and also to the modification of the first instruction, the defendant excepted.</p> <p>“1. To entitle the plaintiff to recover in this action it is incumbent upon him to show by clear preponderance of testimony that no warning or signal of the approach of its car was given by the defendant’s employees in charge of the car, and that, in consequence of such omission to give such warning or signal, the plaintiff did not see or hear the approach of the car until it was too late for him by stopping his team or turning it to avoid the accident.” This instruction the court modified so as to read:</p> <p>“To entitle the plaintiff to recover in this action it is incumbent upon him to show by clear preponderance of testimony that no timely warning or signal of the approach of its car was given by the defendant’s employees in charge of .the car, and that, in consequence of the omission to give such warning or signal, the plaintiff did not see or hear the approach of the car until it was too late for him by stopping his team or turning it to avoid the accident.”</p> <p>“2. In view of the characteristics of plaintiff’s vehicles and defendant’s car, as shown in proof, as between the plaintiff and defendant, the defendant’s car was entitled to the right of way as against the plaintiff’s wagon, and the men in charge of the car had the right to reply upon the recognition of this right of way by the plaintiff; and if the ■ jury find from the evidence that the plaintiff disregarded the defendant’s right of way, and that after discovering that the plaintiff intended to so disregard it, and that in consequence of such disregard his wagon had been placed in such a position that an accident could not be averted by stopping his team or turning it, all reasonable efforts were made to stop the defendant’s car, then the plaintiff is not entitled to recover in this action.”</p> <p>”3. If the jury find from the evidence that the defendant’s car was very heavy and was moving on fixed tracks on a down grade, and that the vehicle driven by plaintiff was an ordinary wagon drawn by mules, which was moving on an up grade and not confined to fixed tracks, then they are instructed that as between said car and said wagon the car was entitled to the right of way, and if they find that the alleged accident occurred by reason of plaintiff’s disregard of the right of way of defendant’s car, then the plain tiff is not entitled to recover.”</p> <p>It was the duty of the plaintiff, before attempting to cross the tracks of the defendant, to look and listen for approaching cars; and if the jury find from the evidence that the plaintiff neglected to observe any one of these precautions, and as a consequence attempted to cross said tracks in front of defendant’s car and so close to it that the accident was unavoidable, then the plaintiff is not entitled to recover.</p> <p>“4. If the jury find from the evidence that the plaintiff might have avoided any collision with defendant’s car by either stopping or turning his team, but that in consequence of an error of judgment the plaintiff endeavored to cross in front of the car when it was too near for him to safely do so, and thereby the accident was occasioned, then the plaintiff is not entitled to recover.”</p> <p>"5. If the jury find from the evidence that the plaintiff had frequently driven across the defendant’s track at the intersection of Fifth street and Massachusetts avenue and knew that • said tracks were used by heavy cars propelled by electricity, then they are instructed that it was plaintiff’s duty before attempting to cross the said tracks to look and listen for approaching cars, and if a car was ascertained to be near to stop and wait until it had passed, and that if the jury believe from the evidence that the vehicle driven by plaintiff could easily have been stopped or the team drawing it turned aside so as to prevent an accident, and if they further find from the evidence that the plaintiff neglected to so look and listen or to stop or turn aside his team, then the plaintiff is not entitled to recover in this action unless you find that the defendant was wilfully negligent in not stopping the car when it could have done so in time to have prevented the accident after discovering the peril of the plaintiff.”</p> <p>“6. If the jury find from the evidence that the plaintiff, approaching in his wagon the tracks of the defendant on Fifth street near Massachusetts avenue, could not see north until the wagon had passed upon the tracks ; that plaintiff knew this fact, and also that the tracks were used for heavy cars moving rapidly and at that point on a down grade ; that without exercising reasonable care in ascertaining whether a car was near the plaintiff drove upon the defendant’s tracks, and that thereby the accident was occasioned, then the plaintiff is not entitled to recover unless you find that the defendant was wilfully negligent in not stopping the car when it could have done so in time to have prevented the accident after discovering the peril of the plaintiff.”</p> <p>“7. If the jury find from the evidence that the wagon used by plaintiff was so out of repair that it could not be turned as readily as wagons of that class are usually turned, and that thereby the plaintiff was prevented from turning his wagon and avoiding a collision with defendant’s car, then the plaintiff is not entitled to recover in this action.”</p> <p>“8. If the jury find from the evidence that the plaintiff, after he became aware of the danger of a collision, might have escaped personal injury by jumping from or into the wagon, and that he failed to do so, then he is not entitled to recover in this action.”</p> <p>The court of its own motion charged the jury as follows : “ Gentlemen of the jury, in the cause now on trial before you Mr. James Hunter is plaintiff and The Eckington & Soldiers’ Home Railway Company of the District of Columbia is defendant. The case has now reached the point where it becomes necessary for the court to instruct you as to your duty, so far as the law is concerned.</p> <p>“The plaintiff in his declaration claims that on the I2th day of August, 1891, at or near the intersection of the railway of the defendant, on Fifth street with Massachusetts avenue, in the city of Washington, by reason of the gross negligence and carelessnes and default of the defendant, in the District of Columbia, the said defendant, not performing and regarding its duty and without signals or warnings to protect against accidents, made no effort to secure persons passing along or crossing the said street or avenue at their intersection against accidents, by means of which and in consequence of which gross negligence and carelessness to perform its duty in that respect aforesaid the plaintiff then and there, to wit, on the day and year aforesaid, while driving along on a loaded wagon drawn by three mules at a moderate and careful walk on said Massachusetts avenue or highway at or near the intersection of Fifth street and not hearing or seeing the approach of any car on said line of railway, was in the act of crossing the said Fifth street when suddenly one of defendant’s electric cars ran into the team and wagon that plaintiff was driving before it was possible for plaintiff after hearing and seeing said car coming at a rapid rate of speed upon him for the first time, when he was in the act of crossing the track, to stop his team in time to hasten it over in time to avoid the collision unless the car was stopped, as it could and should have done by the defendant’s conductor and agent, who, having a better view from his position than the plaintiff, could easily have run slower or stopped his car and prevented the collision, which resulted in smashing and breaking the front wheels of the wagon and in throwing the plaintiff out of the wagon and among the wreck, where he was knocked down, greatly bruised, and injured so as to render him unconscious, and through the gross carelessness and negligence and default of the defendant, by its agent or agents, whereby the bones of plaintiff’s right leg were broken, his flesh greatly lacerated and bruised, producing compound fracture of his bones and profuse hemorrhages of blood, and whereby his shoulders, chest, back, and spine were injured ; and plaintiff, from the effects of which collision and throwing, was internally injured, and his stomach and other organs become inflamed, and his broken leg, ankle, and foot have caused him continuous pain and suffering until the present time, and, as he verily believes (notwithstanding he has had the very best medical and surgical treatment), his injuries to a great extent are permanent and enduring.</p> <p>“ The further averments are as to his continued suffering, etc.</p> <p>“ You will perceive, gentlemen of the jury, that the charge here against the defendant is that its servants were careless and negligent in respect of the management of their car with reference to the plaintiff while attempting to cross this street, and that he, while in the exercise of due care and caution on his own part, was, in consequence of this negligence on the part of the defendant’s agents, injured in the manner stated in the declaration.</p> <p>“ The burden of proof rests upon the plaintiff to prove the alleged negligence of the defendant or the defendant’s agents. That must be established before the plaintiff has any ground whatever for receiving a verdict in his favor. But the term ‘ preponderance of. the evidence ’ is not meant any particular amount of evidence more on the one side than the other; it means that, in your judgment, it must be shown, perceptibly and appreciably, that there is more evidence m favor of the proposition than there is against it — in this instance, that there is more evidence in favor of the theory of negligence of the defendant than there is to the contrary.</p> <p>“ In a general way, gentlemen, if you should become satisfied that the defendant was guilty of negligence it will be-necessary for you, before returning a verdict, to ascertain from the evidence whether the plaintiff was himsel guilty of negligence; and should you find the defendantf guilty of negligence, you must find that it was such negligence as contributed directly to cause the injury to the plaintiff.</p> <p>“ The same consideration must obtain to your inquiry as to whether or not the plaintiff was negligent. If the plaintiff was in some sense negligent; yet if his negligence did not contribute directly to his injury, he is not to be charged with it nor blamed, so far as his actions were concerned. To prevent the plaintiff from recovering on the ground of contributory negligence, you must find him to be guilty of negligence which directly contributed to the injury involved in this suit.</p> <p>“ Now, it sometimes happens that both a defendant and a plaintiff, in these cases of negligence, are shown by the evidence to have been careless, imprudent, and negligent. In such a case as that the law affords no remedy to the injured party. If it is clear that his own negligence caused his injury as well as that of the defendant, the law says that you cannot apportion negligence, and that the plaintiff, having baen negligent himself in a way that directly contributed to cause his injury, can have no remedy for theinjury he has received.</p> <p>- “ It is not the duty of the plaintiff to disprove his own negligence or to prove that he was prudent and careful. (The law presumes, if there is no proof at all upon the question as to whether he was negligent or not, that he was prudent), and therefore the burden of showing the plaintiff’s negligence is upon the defendant. The defendant must show that the plaintiff was negligent in order to prove such negligence as would prevent him from recovering. But when you come to consider the question of the negligence of the plaintiff as well as that of the defendant, you should look at all the testimony in the case — that given by the one side as well as that produced by the other. If in the plaintiff’s own testimony you discover evidence which tends to show that he was negligent you will consider that in connection with such evidence as the defendant offers in order to show the negligence of the plaintiff; and if upon the whole evidence you come to the' conclusion that the plaintiff was negligent (that is to say, in such a way and to such an extent as to directly contribute ■ to his own injury), then, whether the defendant was or was not negligent, you will return a verdict in favor of the defendant.</p> <p>“ To recapitulate, gentlemen, before you can find a verdict against the defendant you must find that the defendant or the defendant’s agents were negligent in such manner as that it contributed directly to cause the injury of which the plaintiff complains. If you do not find that, then you will return a verdict for the defendant. If you do find that the defendant was negligent in such a manner as contributed directly to the injury of the plaintiff, you will then go further and inquire whether the plaintiff was negligent or not; and if you find that he was negligent in such a way as that it contributed directly to his own injury, you will return a verdict for the defendánt, whether the defendant was negligent or not. If you find that the defendant was negligent in such a way as to contribute directly to the injury of the plaintiff and do not find from the evidence that the plaintiff was also negligent in such manner as to contribute to his own injury, you will in that event find a verdict for the plaintiff and assess the proper damages.</p> <p>“ A good many prayers were authorized by the court to be read to you as the law, and they were read to you yesterday, but, inasmuch as some little time has elapsed since they were read, to refresh your memoiy I think I will read them to you again. It may be that I shall have some further comment to make as I go along.</p> <p>“ I will first read the prayers granted on behalf of the plaintiff, which you should regard as being the law in the case, with such explanations ah I may make of them to you further.</p> <p>“ The first prayer of the plaintiff is as follows:” The Court here read plaintiff’s first prayer, and proceeded:</p> <p>“You have heard the evidence, gentlemen, in regard to the situation of this place and some peculiarities connected with it. The view from Massachusetts avenue to Fifth street and on Fifth street north of the intersection of Massachusetts avenue with Fifth street seems, by the evidence, to be obstructed by buildings for a certain portion of the way, as a person coming from the east and going to the west is approaching this crossing. After passing the buildings which are said to be an obstruction to the view there is some evidence in relation to trees and shrubbery which has the effect of preventing vision on the part of the person who might be approaching the crossing of this railroad from the east on Massachusetts avenue. You have heard that evidence, and you have also heard evidence to the effect that there is another railway crossing Fifth street in that immediate vicinity. You have heard the evidence as to the amount of travel, the number of people that are coming and going there on foot, on horseback, or in vehicles of one kind or another, and it it is for you, looking at all the evidence in the case, to say whether that is such a crossing as that, in the exercise of due care and prudence and. regard for the people and property of this city and of those who may be in the city and in that locality, the railroad company ought to have some instrumentality there by which people would be warned of danger, either by way of some person being stationed there or having sign boards up or by means of some other effectual instrumentality, whereby people might be warned of the dangerous nature of the crossing, so that collisions and injuries from collisions might be avoided. If you find that there should have been, in this particular locality, some such instrumentality used for the purpose of warning people who travel that way, then not to have furnished it or them wóuld be negligence on the part of the defendant; and if you find that in that way, owing to the peculiar locality and arrangement of the shrubbery and the houses and the trees and the crossing and owing to the whole situation as developed by the evidence, it was so dangerous as to require care and prudence on the part of the defendant to have caused them to furnish these instrumentalities, whatever in your jndgment they ought to have been, and if you find from the evidence that they were not furnished, and that the accident resulted to the plaintiff in consequence of the want of such means and methods of protection as I have alluded to, then the defendant might be regarded as guilty of negligence in this case.</p> <p>“ Of course, there are many other things to which you may look for the purpose of ascertaining whether the defendant was guilty of negligence, as, for instance, whether the defendant’s agents, when they were upon this car, could have looked and have seen the plaintiff in ample time to have protected him, to have stopped the car before they reached the crossing. If they could have done so by an outlook, if there was nothing to prevent or obstruct their view of the plaintiff in the situation in’which the evidence may show him to have been, then it would be negligence upon their part not to have observed him, because in running a street car through the streets of a city like Washington common care and prudence require that the agents and servants of the defendant who were entrusted with the management and running of that car should keep an outlook as to the way in which they are traveling in order to avoid accidents and in order to avoid injury to people who may be traveling upon the highways of the city. That will be a matter for you to look at, and there may perhaps be something more in this connection to which I shall call your attention further along.”</p> <p>- “ The privilege given by Congress to the Eckington and Soldiers’ Home Railroad to operate a street railway in the city of Washington must be considered in reference to the character of the privilege conferred, and if it appears from the charter of the company and the evidence that it accepted a charter which involved the running of a street railroad', among other streets, over Fifth street N. W., at its intersection of Massachusetts avenue, with new appliances and machinery and through the agency of electricity, and these added to the danger of travel on said Fifth street and Massachusetts avenue, it was incumbent upon the railroad to act accordingly, and to operate its road in a manner' corresponding to the increased danger, and to take all reasonable precaution to guard the public from accidents, and if on the 12th day of August, 1891, it had omitted or neglected this duty and the plaintiff was injured by such omission or neglect, without fault on his part, the verdict should be in his favor.”</p> <p>“ That is substantially what I have already said to you, and what is in the first prayer I read to you. I did not intend to read this because of that fact. This having been read, I have one further qualification to make of it, inasmuch as it closes by saying that you should ‘ render a verdict in his favor ’ if you find the defendant is negligent in regard to observing due care and caution in running this road — that is, that you can render a verdict in favor of the plaintiff if you so find, and provided you do not find that the plaintiff was guilty of negligence in a manner that contributed directly to cause his own injury.” Plaintiff’s prayers numbered 4, 6 and 8 were here read.</p> <p>“ It is the duty, gentlemen of the jury, of every one who sees another human being in peril from some instrumentality over which the one who perceives the danger to the other has control to use every means in his power to avoid injury to the person so in peril, and it makes no difference that the person who is in peril has carelessly and negligently placed himself in that peril; and so, as a matter, perhaps, of public policy, the law provides a rule to the effect that although a plaintiff, for instance, in a .case may have been shown to have placed himself in a perilous condition or position, yet if the defendant in that case actually saw the plaintiff in the perilous position in ample time or in time so that he, the defendant, or his agents, by the exercise of diligence, could prevent the accident or injury to the plaintiff who was in peril, then if the defendant or the defendant’s agents neglected to use every effort in his or their power to prevent the accident or injury the defendant is liable, notwithstanding the plaintiff may have been careless and negligent in placing himself in the perilous situation. The law regards negligence of a defendant under such circumstances as amounting to wilful negligence, wilful injury to the plaintiff. A defendant having seen the peril of a plaintiff and failing to use the instrumentalities which were within the power of the defendant or his agents to use to prevent the injury to or, it may be, save the life of a person in peril is regarded as committing what is equivalent to wilful injury or injury resulting from the wilful act on the part of one person towards another, and the law provides that in such a case and under such circumstances the plaintiff, although negligent, may recover; and that is the purport of the prayer which I have just read to .you. I instruct you, gentlemen, that you are to look at all .the evidence to determine whether there is any room for applying any such rule in this case as the one I have just mentioned. It is contended on the part of the plaintiff (I do not know with how much force), that if you should find the circumstances attending the accident to be as mentioned in the last instruction I have read to you, that this rule can be applied. You have heard the argument of counsel and you have heard the evidence, which I do not intend to rehearse or to reiterate, but I merely desire to call your attention to it and have you look at it to see whether there is any evidence in the case of any sufficient importance to justify you in so finding the fact to be, namely, that the defendant’s agents, after seeing the peril in which the plaintiff was placed or about to be placed should they go on with their car, had time to have stopped the car and prevent the injury. If they did and neglected to stop the car, the defendant should be held liable, notwithstanding you may think that the plaintiff was negligent in placing himself upon the track in the manner which the evidence may indicate to your minds that he did.” The court here read plaintiff’s prayer numbered 9.</p> <p>“ (Something has been said, possibly in your hearing, by counsel in the course of this trial as to the question whether the street railway cars had the right of way in preference to the plaintiff, had a paramount right to occupy the track and pass backwards and forwards in preference to a person who might be traveling upon an intersecting street with reference to the crossing, and the instruction which I have just'given you is to the effect that that there is no paramount right upon the part of either party; both are alike lawfully entitled to travel upon and across the streets).</p> <p>“ Of course travellers in ordinary vehicles or pedestrians are to look to the fact, known and of course understood by everybody at the present time, at least in this community, this District, that a street car propelled by electricity or by any great power, such as a cable, proceeds with momentum, and if a collision occurs becomes very destructive to an ordinary vehicle or to a person and enhances to a certain extent necessarily the danger of travel. It requires the exercise of more vigilance, more care, and more alertness on the part of people who travel in the city, and especially if they are travelling in the vicinity of these cars or are attempting to cross in front of any of them, than would be exercised or would be necessary to be exercised if these street railways were not present, and in that respect common prudence, ordinary prudence fbecause that is the test) —ordinary prudence would require the exercise of such a degree of care and alertness as I have mentioned upon the part of the person who is about to cross one of these tracks upon which are propelled these cars by electricity; ordinary prudence would require that such care should be exercised by the person so undertaking to cross, whether in a vehicle or otherwise, because the danger is much greater than it would be were the highway traveled upon only by ordinary vehicles. These cars proceed with greater rapidity and greater momentum,'and a collision results in greater destruction and inj ury. So, in undertaking to estimate whether or not the plaintiff was guilty of negligence or whether he exercised ordinary care and prudence in the manner in which he conducted himself, as is shown by the evidence, you will bear this in mind, that he was bound to exercise ordinary care and prudence with reference ,to the situation and the circumstances, with reference to the fact that he was crossing a railway upon which were propelled these electric cars, and he should have been correspondingly vigilant over and above what he would have been upon an ordinary highway, in order to be in the exercise of ordinary prudence and care under the circumstances ; and, taking the situation into consideration, ordinary prudence is always the rule by which a party is to be governed and to be judged ; but ordinary prudence under some circumstances would not be ordinary prudence under others; it depends upon the peril of the situation ; the more perilous it is, the greater the care and prudence required of a party who may be in the vicinity and liable to injury, although it is only ordinary care and prudence, such prudence as ordinarily prudent men would exercise under like circumstances and in such a situation.” Plaintiff’s instructions numbered 12 and 13 were here read:</p> <p>“ There are some prayers also for the defendant which the court has granted and which I will again read in your hearing, so as to refresh your recollection.” Defendant’s first instruction, as modified by the court was here read, and the court proceeded:</p> <p>“(Perhaps one word should be said here in connection with this instruction. While I think it is correct, yet there are circumstances possible under which the jury would be authorized to look at this matter in a different light from what is indicated by this instruction.. Where a party is suddenly and without fault on his part confronted with a great and imminent peril the law does not hold him to the greatest strictness in regard to what he may do. Sometimes such a situation has the effect (upon many persons) of paralyzing them, taking away their power for action, their will power, and their power to do anything for self-preservation for the moment, for the time being. Where the situation was such that there were ways by which the person injured might possibly have avoided the threatened injury or danger and he did not think of it or did not do it, it is to be left to the jury to say whether under the circumstances it was his fault, and the question is one which the jury should determine after a fair consideration of all the circumstances and the situation in which the plaintiff was placed. There are persons upon whom the effect of being confronted suddenly with a great danger seems to be to brighten their faculties and to increase their will power and their power of acting quickly; the remedy or the way of avoiding the peril seems to suggest itself readily, and the power to act comes with the thought that they may save themselves in a certain way, and they act promptly ; but the experience of mankind shows that it is not everybody who can do that, and so, under such circumstances as these, the question of contributory negligence on the part of the plaintiff is one to be considered by the jury. This explanation is suggested simply by the expression in -this instruction that ‘ if the plaintiff did not see or hear the car in time to turn his horses or to drive them off the track,’ etc. If he might possibly have turned them and thus avoided the injury to himself and the wagon it is for you to say whether in not doing that, in so far as the negligence may consist in not doing that, negligence should be charged to the plaintiff, in view of all the surroundings).</p> <p>“Of course you will look to see whether there was negligence on the part of the plaintiff in going on the track at all. I will speak of that hereafter.” Defendant’s instruction numbered 3 was here read.</p> <p>“ (You should look to all the evidence, gentlemen, which seems to be involved in the determination of this question of the duty of the plaintiff. You should first inquire whether by looking the plaintiff could have discovered the car of the defendant or whether if he had listened carefully he could have determined that there was a car coming. You should look to the fact that it has been testified here that there was another car coming along — a car of the Columbia Railroad — crossing about the same time, and that there were other vehicles in the neighborhood passing back and forth upon the streets, in order to determine whether under all the circumstances he would have heard or could have heard and determined that there was a car coming, and it will be for you to say, gentlemen, in view of the fact that the evidence discloses that the plaintiff was in the habit of traveling upon that street and frequently crossed there before and was fully aware of the situation — the fact of the railroad tracks being there — whether it would have been required of him, owing to the dangerous situation and owing to the fact that there were obstructions which prevented him from seeing or may have been (I do not know what you will find from the evidence on that subject); but assuming you find from the evidence that there were obstructions which prevented him from seeing the car until he had approached very nearly to where the crossing was— until he had got out upon the track — it will be for you to say whether, asuming that to be true, he should not have ventured to go upon the track until- he had, if necessary, gotten down from his wagon and gone to a point where he could see whether there were cars coming or not. It will be for you to say whether that was the exercise of ordinary care and prudence; such care and prudence as an ordinarily prudent man would exercise under the circumstances; because the plaintiff is not held to any higher degree of prudence. He is not to be held to the degree of care and prudence that a very prudent man, a very cautious man, would exercise, but merely to the degree of care and prudence which an ordinarily careful and prudent man would exercise under the circumstances. It will be for you to say under the evidence whether he should have done that in order not to have been guilty of such negligence as contributed to the result which followed).” Defendant’s instruction numbered 5 was here read.</p> <p>“ I have already instructed you, gentlemen, as you will remember, that if the defendant could have stopped the car in time to have prevented this accident, and neglected to do so, then, even although the plaintiff may have been negligent in going upon the track, the defendant would be liable, and that is the condition attached to this instruction.” Defendant’s instruction numbered 6 was read.</p> <p>“ Gentlemen, there are only a few words more. If you shall find for the plaintiff, after the consideration of all the evidence, applying to your consideration of it the rules laid down for that purpose by the court, it will then be your duty to find what damages he is entitled to. In doing that you should assess damages fairly and reasonably with reference to the pain and suffering which the plaintiff has endured, with reference to the expenses which he has incurred and paid for medical attendance and nursing, and you can look to whatever testimony there may be as to his injuries being permanent, their having endured after a certain time, and as to whether they will be likely to afflict him to a greater or less extent in the future. You should look to all those points for the purpose, gentlemen, of determining what would be a fair compensation for his injuries, in so far as mere money can compensate a person for anything of this kind. The damages which you may under such circumstances assess to the plaintiff should not be extravagant or exorbitant; they should not be levied by you for any purpose of mere punishment of the defendant, but only for the purpose of compensating the plaintiff. In your consideration of this case, the question of damages and all other questions involved in it, you should endeavor to divest your minds of any feeling of bias or prejudice, if you have any; if you are conscious of having any you should put them to one side. You should have no prejudice against the defendant because it is a corporation, nor against the plaintiff because he appears to be an humble citizen, a poor man, perhaps ; you should not overlook or disregard the fact that his rights in this court are precisely the same and as precious and as much to be observed and looked after as the most prominent citizen in the land. The defendant is not to be punished because it is a corporation, having more or less property and more or less power or influence. It stands before you here simply as a defendant to uphold its cause. You should weigh the testimony fairly and for what it is worth, applying the rules which have been given to you by the court fairly and with judgment and as unerringly as it is possible for you to do. You are not to give damages to the plaintiff, however, out of sympathy because he is a poor man, unless the evidence shows that he is entitled to a verdict; but you will, upon a fair consideration of all the evidence, considering the actual injuries to the plaintiff and the responsibility of the defendant for them in the light of the law and of the evidence, determine upon what you may agree to be a just and fair verdict in the premises and return it.”</p> <p>The portions of the foregoing charge enclosed in parentheses were duly excepted to by the defendant. — Reporter.]</p>

Hearing on an appeal by the District of Columbia from a judgment on verdict in an action to recover damages for injuries to property caused by the overflow of a sewer. The Court in its opinion stated the case as follows : This cause was before us once before, and our decision of it is reported in i App. D. C. 500.

Hearing on an appeal by the defendant from an order setting aside the discontinuance of a creditors’ suit, and reinstating the cause. The Court in- its opinion stated the case as follows: This is an appeal from an order setting aside the discontinuance of a cause.

<p>Hearing on an appeal by the defendant from a decree vacating and annulling two deeds of real estate.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellee, John Savary, was the owner of two adjacent lots of ground in square No. 71, in the city of Washington, with dwelling houses thereon, in one of which he resided, and the other he rented to Thomas H. Williams, one of the defendants in this case, although he does not appear in the appeal. On September 15, 1892, Savary and Williams entered into an agreement which was reduced to writing, whereby it was agreed that Savary would sell to Williams the property occupied by the latter, and that Williams in consideration of this transfer, would assign to Savary an interest, amounting to $7,500, held by him (Williams) in a claim of one Aaron Van Camp against the United States, in which there had been findings by the United States Court of Claims in favor of Van Camp, but which was awaiting the action of Congress for an appropriation. The agreement between the parties, it is understood, provided for the immediate execution of a deed of conveyance by Savary and of a formal assignment of his interest in the Van Camp claim by Williams, and these two papers were accordingly executed by the two parties respectively on the same day (September 15, 1892). The agreement provided also, that if the proceeds of the claim should not be collected before September 15, 1893 — that is, within one year thereafter— the transaction should be rescinded, and the sale and the assignment should both be null and void ; and in that event Williams should pay to Savary the sum of $500 as rent for the use and occupation of the property for the year.</p> <p>The agreement, the deed and the assignment were then placed in an envelope, which was thereupon sealed and indorsed with the superscription “Exhibit A;” and Savary and Williams, the two parties to the arrangement, went with it to the office of the Washington Loan and Trust Company, rented from that company in their joint name a safe or box in its vaults, in which they deposited the envelope with its contents, and for which each one of the two received a duplicate key. The two signed a receipt on the books of the company, had some understanding with the assistant custodian of the vault who was the officer of the company with whom they dealt on this occasion, and went their way. The contents of the receipt are in controversy, as is to some extent the terms of the understanding which they had with the officer of the company. The receipt, as it appears now from the books of the company, is partly printed, partly stamped and partly written, and is as follows :</p> <p>“Washington, D. C, Sept. 15, 1892.</p> <p>“ Received of the Washington Loan and Trust Company 2 keys to safe No. 610, and a receipt upon which is printed the contract under which said safe is leased, and to the terms of which I agree.</p> <p>“It is understood and agreed that either one of the lessees, who are considered to be joint lessees, shall have, at all times, free access to safe No. 323 leased by them.</p> <p>“ It is agreed by the undersigned, that the sealed envelope marked Exhibit “A” shall not be taken from the Box except in the presence of both parties hereto.</p> <p>(Signed), “John Savary,</p> <p>(Signed), “ T. H. Williams.”</p> <p>The first is the printed part, with the exception of the figures 2 and 610, which are filled in in writing. The portion underneath the printing, on the left-hand side, was impressed by a stamp, stated to be usually used on such occasions, except the word either and the number which are both in writing, blanks having been left for them. The portion on the right-hand side immediately over the signatures of the parties, is in the handwriting of Mr. Allen E. Hill, who was the officer of the company with whom the parties had their arrangement.</p> <p>The year limited for the continuance of their contract passed without the payment of the Van Camp claim; and the parties again came together on September 14, 1893, and renewed their agreement, apparently with some slight modification, to continue until March 4, 1895. A supplemental contract was then drawn up, which appears in full in the record, and of which three copies were made, one for each of the parties and one to be deposited in the box in the vault of the loan and trust company. The papers previously deposited in that box had been withdrawn for the purpose of making this supplemental agreement; but on the next day, September 15, 1893, the two parties again apr peared at the office of the company, renewed their subscription for another year, placed the papers, including the original agreement, the deed of conveyance, the assignment of the claim, and the supplemental agreement, in an envelope, sealed the envelope, marked it as before “ Exhibit A,” and returned it to the box.</p> <p>On the same day, September 15, 1893, Mr. Tenny Ross, an officer of the loan and trust company, who was the custodian of the vault, and to whom Mr. Hill, the assistant custodian, was subordinate, having occasion to examine the receipt of Savary and Williams on his books, which has been heretofore set forth, and deeming apparently that the stamped portion of the receipt was inconsistent with the written portion, drew cancellation marks through the former and wrote across it the words and figures, “ Cancelled 9-15, T. Ross,” meaning thereby, “Cancelled on September 15, 1893.” This was done without consultation with Mr. Hill, or any other officer of the company, or with either of the parties.</p> <p>On October 5, 1893, Williams came alone to the office of the company, procured, through Mr. Hill, who was in attendance, access to the box, carried it to one of the private rooms out of the presence of any officer of the company, abstracted from it the envelope marked “ Exhibit A” with its contents, substituted in its place an envelope filled with worthless paper and returned the box to the vault.</p> <p>Thereupon he procured from the defendant, John Burton, a loan of thirty-five hundred dollars ($3,500), to be secured by deed of trust upon the property. The District Title Insurance Company of the District of Columbia was employed to examine the title, and the deed from Savary to Williams was by the latter placed in its possesion for the purpose and to be placed upon record in connection with the proposed deed of trust. The title, except as to a small part of the property deemed to be of no importance, was found to be good on the record. The deed of trust was thereupon executed by Williams, with the defendants, Eugene Carusi, Esq., president of the title company, and William T. Davis, as trustees; the money ($3,500), was paid by Burton, and the deed from Savary to Williams and the deed of trust from Williams to Carusi and Davis to secure Burton were delivered for record.</p> <p>Receiving intimation of the transaction from notices of the transfer in the newspapers, the appellee, Savary, on October 27, 1893, went to the office of the loan and trust company, procured access to the box, and discovered the abstraction of the envelope designated as “ Exhibit A,” with its contents. A stormy scene followed, which need not be detailed. As soon as possible thereafter, on November 3, 1893, Savary filed his bill in equity in the present suit, in which he seeks the cancellation, both of the deed to Williams and of the deed of trust given by the latter, and to enjoin the defendants from setting up title in the premises.</p> <p>The defendant Williams had disappeared; ■ he failed to. answer, and a decree pro confesso was taken against him. The defendants Carusi, Davis and Burton answered; and the substance of their answer is that they had no knowledge of any fraud or illegality on the part of Williams, and that they were bona fide purchasers for value without notice.</p> <p>Testimony was taken, most of it on behalf of the complainant Savary, from which the facts here stated were developed. One peculiar feature of the testimony is that the complainant seeks to contradict one of his own witnesses, Hill, the officer of the loan and trust company with whom he dealt. Hill testified that the stamped portion of the agreement on the books of the company signed by Savary and Williams was placed there before they signed the receipt. Savary testified that, according to his recollection, it was not there at that time, and that he had never seen it until the books wei'e produced in evidence in this case. The juxtaposition of the two parts of the agreement, in the limitation of the written part to the space which it occupies, shows conclusively that Mr. Hill is idght and Mr. Savary mistaken, and that the stamped portion was impressed before the other portion was written. But this, after all, does not seem to be of controlling importance in the case.</p> <p>Upon the hearing, the court below xendered a decree in favor of the complainant, and directed that the two deeds complained of should be vacated and annulled. From this decree the defendants Carusi, Davis and Burton have appealed.</p>

<p>Hearing on an appeal by the defendant from a judgment on verdict in an action to recover compensation for professional services.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit instituted in the Supreme Court of the District of Columbia by the appellee, H. O. Claughton, as plaintiff to recover from the appellant, John W. Burke, compensation for professional services pursuant to a contract between the parties. The appellant and others were holders of bonds of Clarke County, in the State of Virginia, issued by that county in aid of the Alexandria, Loudoun and Hampshire Railroad Company on July 22, 1858, and which-were payable-in thirty-four years, that is,, on July 22, 1892, with interest coupons attached, which were payable semi-annually on the first day of January and the first day of July in each year. These bonds were guaranteed by the railroad company, which executed a deed of trust by way of mortgage on its property in order to indemnify the county against loss. Default occurred in the payment of interest, and in 1884 many of the coupons remained unpaid.</p> <p>The railroad company in the meantime had undergone various mutations and transformations. First, with the consent of the General Assembly of Virginia, it was reorganized and changed its name to that of the Washington and Ohio Railroad Company. Afterwards, under legal proceedings instituted in the Circuit Court of the city of Richmond, in the State of Virginia, the property and franchises of the company were sold, and a body corporate was thereupon formed by the purchasers under the name of the Washington, Ohio and Western Railroad Company. This sale, however, was made subject to the lien of the deed of trust given to secure Clarke County for the bonds which it had issued.</p> <p>The various transformations of the road, or of the company which operated it, did. not, however, secure punctuality in the payments of its obligations; and, as already stated, several instalments of interest were due and unpaid in 1883. In or about the fall of that year, the appellee, Hierome O. Claughton, Esquire, who had been the attorney and legal adviser for many years of the appellant, John W. Burke, or of his banking firm of Burke & Herbert, of Alexandria, in the State of Virginia, was employed by the appellant to enforce his claims on account of the Clarke County bonds and coupons, of which he was a considerable holder. Precisely what the extent of the employment was, is one of the mutters in controversy in this case. But it is clear, at all events, that it was the intention to get as many as possible of the holders of these bonds and coupons to come into a combination to place all their claims in the hands of Mr. Claughton for prosecution. Among these holders, besides Burke & Herbert, were Lewis McKenzie, of Alexandria; George O. Manning and Henry Kellog, of Baltimore, Maryland, and several others.</p> <p>On May 27, 1884, there was drawn up by Lewis McKenzie, who was a merchant in Alexandria, a memorandum of agreement with reference to this matter, which is in the following terms:</p> <p>“It is agreed upon the part of J. W. Burke and all others who may come into the arrangement and H. O. Claughton, attorney, that he will undertake the case of collecting the interest now due or may become due, as well as to fix the liability of future payments of Clark interest and principal of bonds through the Virginia Courts, Court of Appeals, or United States Courts, at a compensation of io per ct. on the amount of judgment, and that an advance of $250 is to be paid, to be refunded to the parties provided he fails in obtaining judgment.</p> <p>“Alexandria, May 27th, 1884.</p> <p>(Signed), “H. O. Claughton.”</p> <p>This paper, which was in the handwriting of McKenzie, except the figures $250, was signed by Mr. Claughton and by him delivered to McKenzie: The latter subsequently handed it to the appellant, Burke, who, as he himself says, without reading it or ascertaining its contents, or assenting thereto, placed it in the safe of Burke & Herbert, where it remained undisturbed until the latter part of the year 1886. Burke & Herbert soon afterwards paid the stipulated retaining fee of $2^0, looking to the other holders to reimburse them for their proportional shares.</p> <p>Mr. Claughton’s purpose was to go into the United States Circuit Court for the Eastern District of Virginia, if possible ; and accordingly it was sought to procure as complainants in the proposed suit some holders of bonds who were not residents of that State. Communication was thereupon opened, first, by Burke & Herbert, and afterwards through their intervention by Mr. Claughton, with George O. Manning and Henry Kellogg, who held some of the bonds and resided in the State of Maryland. There was apparently considerable reluctance manifested by both of these gentlemen to enter into the proposed arrangement, and it was not until the 7th of November, 1884, that Mr. Claughton was ready to 'act by filing a bill in equity, as he did on that day, in the United States Circuit Court for the Eastern District of Virginia, in the name of Henry Kellogg, for himself and all others who should come in.</p> <p>Several letters appear in the record that passed between the parties during the intervening period. Under date of September 27, 1884, Claughton wrote to Manning, what would seem to have been his first communication to him. In this he stated to him that the rights of the holders of the bonds and their right to a first lien on the property of the railroad company had already been adjudicated by the court of last resort in Virginia; that there was nothing left to be done but to call upon the trustees in the deed of trust to execute their trust by a sale of the property; that the trustees had refused to sell, and that he proposed to file a bill in equity for their removal and the substitution of other trustees to execute the trust. And he added that, as it was desired to sue in the Federal court, it was suggested that Manning should be the complainant for himself and the other creditors, and that he believed that the filing of a bill would produce an immediate settlement.</p> <p>In a subsequent letter of October 16, 1884, Mr. Claughton wrote to Mr. Manning as follows :</p> <p>“ Dear Sir : I have delayed answering your letter until I could see Mr. Burke. The contract with Mr. Burke and those who act with him is that I am to receive as compensation ten per centum of the amount of interest which the court shall decide the bondholders are entitled to recover— $250.00 to be paid in advance and to be credited upon the ten per cent, on final settlement. That is all that is to be paid except the court costs, which will be small and for which there will be a decree against the company. Is this explicit enough ? If so, will you show it to Mr. Kellogg, or shall I communicate directly with him ? The bill is all prepared and ready for operation.”</p> <p>Shortly afterwards, under date - of October 27, 1884, Burke & Herbert addressed a letter to Kellogg, in which, among other things, they said :</p> <p>“ In the first place, Mr. McKenzie made the contract with counsel Claughton, and, of course, is already in. The cost of collecting your coupons is ultimately 10 pr. ct. * * *. You pay neither more nor less than io per ct. for collecting, and in the meantime when the pro rata amount ©f $250, the fee, is known you will be called upon to pay only your proportion. We have already paid the whole $250, and had we the right to go into the Federal Court would not trouble you one instant.”</p> <p>This seems to have determined the reluctance of Mr. Kellogg, and he agreed to become the principal complainant in the proposed suit, and the bill in equity was filed in the Federal Court on November 7, 1884, as already stated, wherein Henry Kellogg was complainant, and the Washington, Ohio and Western Railroad Company, Clarke County, and others were made defendants.</p> <p>To this bill pleas in abatement were interposed both by the railroad company and by the county to the effect that a similar suit on behalf of similar creditors was then pending against the same defendants and for the same precise purpose in the Circuit Court of Clarke County. And the pleas were sustained, and the suit was dismissed by the Federal Court on January 8, 1885.</p> <p>Thereupon Mr. Claughton resolved to intervene in the suit referred to as pending in the circuit court of Clarke County, which had been instituted on June 13, 1883, in the name of Harriet E. Cazenove, on behalf of herself and all other bondholders secured by the deed of trust of August 6, 1858, against the Washington, Ohio and Western Railroad Company, Clarke County, and others, and the declared purpose of which, according to the prayer of the bill of complaint therein, was “that all the holders of said bonds and coupons issued as aforesaid to said Alexandria, Loudoun and Hampshire Railroad Company by said county of Clarke may be convened and the amounts due to them and each of them may be fixed and ascertained; that the lien of said deed of trust of August 6th, 1858, may be enforced by sale of the property conveyed by said deed or of so much thereof as may be necessary for the purpose of payng the amounts so ascertained to be due; that, in order to prevent multiplicity of suits, the decree to be entered in this cause may provide for the full payment and satisfaction of the whole amount of said bonds and of all the coupons thereto attached or issued therewith, as they respectively become due, to the parties who may show themselves entitled to such payment; that a receiver may be appointed to take charge of said railroad and of its property and effects, in order to the payment of the amounts due and secured by said deed of trust of August 6th, 1858; that said county of Clarke, a defendant hereto, may be held liable for the payment of said bonds and coupons,” &c.</p> <p>It does not appear whether the appellee or any others of the clients of Mr. Claughton were formally made parties to this suit. The inference would be that they were not. But there had been a reference in the cause to a commissioner to ascertain and report the amounts severally due to the holders of bonds or coupons, and the value of property conveyed to secure them; and in his report, among other items, it appears that the appellant, J. W. Burke, held bonds to the par value of $8,500 ; and that there was due to him for interest from July 1, 1882, to July 1, 1885, interest to the amount of $2,250.</p> <p>In October, 1886, this cause came on to be heard on the report of the commissioner; and then Mr. Claughton appeared and argued the case, presumably in connection with the attorneys who had filed the bill and conducted the proceedings to this point; and on October 6, 1886, a decree was rendered by the court, confirming the report of the commissioner, holding that Clarke County was liable for the principal and interest of the bonds, and that the property covered by the deed of trust and now in the hands of the defendant railroad company was subject to its lien, and appointing trustees to make sale of this property in the event that the overdue coupons were not paid within a certain specified time. The decree went on to provide also that the bill should be retained, so that the complainant and other creditors might come in at any time afterwards upon •default in the payment of any of the coupons thereafter to become due, or of the bonds themselves upon their maturity. From this decree appeal was taken by the defendants in the cause ; but the decree was affirmed by the Court of Appeals of Virginia on September 29, 1887. Mr. Claughton participated also in the argument before the Court of Appeals.</p> <p>On or about February 1, 1888, Mr. Burke received for himself and for his firm of Burke & Herbert, from the railroad company, the sum of $6,835.20, as it would seem, on account of the overdue coupons and interest thereon; and thereupon he tendered to Mr. Claughton, in payment for his professional services, the sum of $544.50, which was fen per centum of the amount collected ($683.52), less a credit of $139.02, to which he claimed to be entitled. This Mr. Claughton refused to receive. Differences of opinion had already arisen between them as early as November or December of 1887, in regard to the basis upon which his compensation should be computed, which Mr. Claughton claimed was the value of the whole judgment or decree of the circuit court securing, according to Mr. Claughton’s claim, both the principal and interest of the bonds, and as well that portion which was not due as that which was due, amounting in the aggregate to $20,264.37, on which he claimed to be entitled to $2,026.43. Mr. Burke, on the contrary, maintained that the contract between them was that Mr. Claughton should receive only ten per centum of the amount of the coupons collected. The matter seems to have remained in abeyance for nearly two years ; and then, on January 2, 1890, the present suit was instituted.</p> <p>Apparently there have been two trials; and it is the record of the second trial that is now before us. At this trial the facts were elicited which have here been stated. The testimony consisted mainly of the respective statements of the plaintiff and defendant, and of the correspondence to which reference has been made; and to none of this testimony does there seem to have been any objection interposed. At the conclusion of the testimony five instructions on each side were requested, of which those for the plaintiff were all granted, and three of those for the defendant. The court also charged the jury of its own motion ; and to several statements of the charge, as well as to the granting of two of the plaintiff’s instructions and to the refusal of the court to grant the two instructions for the defendant which were rejected, exception was taken on behalf of the defendant.</p> <p>Verdict and judgment were in favor of the plaintiff for the sum of $1,911, with interest from February 5, 1887; and from this judgment the defendant has appealed.</p> <p>[The two instructions requested by the defendant, and which were refused, were as follows :</p> <p>“3. In determining what the contract and agreement between the plaintiff and the defendant really was in respect of the professional services to be rendered by the plaintiff in the matter of the defendant’s Clarke County bonds and the interest thereon, the jury has the right and it is their duty to take into consideration the statement and writings made by the plaintiff and defendant concerning their agreement at or about the time it was made or being executed, and if the jury shall find from the evidence that the plaintiff wrote the letter in evidence to Mr. Manning dated the 16th day of October, 1884, and stated therein his understanding of the meaning of what is therein referred to as the Burke contract, intending thereby to refer to the contract or agreement between the plaintiff and the defendant in respect of said Clarke County bonds, and shall further find from the evidence that the defendant on the 27th of October, 1884, wrote to Mr. Kellogg the letter in evidence bearing said date, and stated therein his understanding of the meaning of the agreement between himself and the plaintiff in respect of the plaintiff’s said professional employment and the compensation therefor, and that the plaintiff and the defendant in said letters gave the same interpretation and meaning to said agreement, and the said agreement was executed according to such interpretation, then the interpretation and meaning of said contract as agreed to by both the plaintiff and the defendant was binding on both, and it was not within the power of the plaintiff or the defendant to change the terms or the meaning of said agreement or to give the same a new interpretation without mutual consent.”</p> <p>”5. It is for the jury to determine upon the whole evidence what the agreement between the plaintiff and the defendant was in respect of the compensation to be paid to the plaintiff for his professional services in respect of the defendant’s Clarke County bonds, and the interest thereon and upon what the ten per centum mentioned in the paper-writing in the evidence was to be computed, and if the jury shall find that the plaintiff was employed by the defendant and others in the fall of 1883 to collect the overdue interest on the said bonds under a verbal agreement, and that the plaintiff signed the paper-writing in evidence dated May 27, 1884, and that said paper was delivered to the defendant by Mr. McKenzie and was retained in the possession of the defendant, although not signed by him, and that the plaintiff at that time and afterwards and while his agreement was being executed understood that the ten per centum mentioned in said paper-writing was not to be computed on or in respect of the principal of said writing, but on the interest collected, and so stated in a letter to Mr. Manning dated Oct. 16th, 1884, if they find that the plaintiff wrote said letter, and if they further find that the defendant also understood that the agreement of said plaintiff was not for a compensation to be computed by a percentage on the principal of said bonds, but only on the interest due and to become due thereon, then the plaintiff cannot recover in this action any compensation in respect of the recoveiy or payment of the principal of said bonds, but only in respect of the interest thereon.”</p> <p>The instructions granted on behalf of both parties are included in the charge of the court, which was as follows:</p> <p>“ Gentlemen of the jury, the evidence which has been adduced in this case indicates this state of facts beyond dispute: That some years ago the county of Clarke, in the State of Virginia, issued one hundred thousand dollars’ worth of bonds, which were guaranteed by the Loudoun and Hampshire R. R. Co. and secured by a deed of trust upon the railroad. The original liability on these bonds, so far as the railroad company was concerned, was the liability of the Loudoun and Hampshire R. R. Co., and that liability was, it is claimed, transferred by some judicial proceedings to the Washington, Ohio and Western Railroad Company. A number of these bonds were held by the defendant in this case, Mr. Burke. Some of them were held by Mr. Me- • Kenzie, whose name has figured in the evidence in this case, and others were held by other parties whose names have been used in evidence, and others by persons whose names have not been used in the course of this trial.</p> <p>“ At the time when this controversy begins or when the relations of the parties with reference to this particular subject-matter began it appears that the coupons upon these bonds to the extent of three years, representing the interest upon the bonds, were overdue and unpaid. There had been a proceeding in the courts of Virginia in a case which is called the Lewis case, in which both the county of Clarke and the Washington and Ohio R. R. Co. had denied their liability upon these bonds. It appears that in 1883 a bill had been filed in the county of Clarke by Mrs. Cazenove which sought to fix the liability of the railroad company and the county of Clarke for these bonds, as well as to ascertain and determine by a judgment the rights of Mrs. Cazenove with reference to the interest, and also the rights of all parties who might come into that case and litigate it.</p> <p>“It appears that the responsibility of both the county of Clarke and of the Washington and Ohio R. R. Co. was denied by the county and by the railroad company, and at the time the transaction occurred between the plaintiff and the defendant with reference to these bonds not only was the previous interest overdue and unpaid, but this question of the responsibility of these two parties — the county of Clarke and the railroad company — was regarded as still outstanding and to some extent unsettled. That question was claimed to have been determined in a proceeding in the courts of Virginia.</p> <p>“ It was then that Mr. Claughton, the plaintiff in this action, filed a bill in the circuit court of the United States at Richmond seeking to secure the removal of the trustees who had failed to respond to a demand for a sale to pay this overdue and unpaid interest, and to fix the liability for these unpaid coupons. That litigation, as you have been told, resulted in nothing. The bill was dismissed by order of the Circuit Court of the United States, and thereafter, as it appears both by the testimony of the plaintiff and the defendant, the plaintiff was requested to protect the defendant’s interest in the cause which had been instituted by Mrs. Cazenove in the county of Clarke in the courts of Virginia.</p> <p>“It is claimed on the part of the defendant that he had made an oral contract with the plaintiff with reference to this litigation which was that the plaintiff should be paid, if successful in the litigation either in the Circuit Court of the United States or in any subsequent litigation, ten per cent, only upon the amount of interest collected. The plaintiff claims, on the other hand, that he made and entered into a contract with the defendant by which the defendant and others who should come into that arrangement obligated themselves to pay him, in consideration of the services that he should render in collecting the overdue coupons representing the interest and in fixing the liability of the county of Clarke and the railroad company, ten per cent, upon the judgment or decree which should be obtained. That is the point of difference between the parties.</p> <p>“ The defendant, so claiming that this was his contract and his sole liability, tendered to the plaintiff the sum of five hundred and forty-four dollars and some cents prior to the bringing of this action, and he has also paid it into court. It is not controverted, I believe, that this sum correctly represents ten per cent, upon the overdue and unpaid interest if the contract related solely to the collecting of that interest and this five hundred and forty-four dollars and some cents would represent the fee to which the plaintiff would be entitled upon the basis of a contract of ten per cent, only upon interest collected, so that if you should come to the conclusion that this was the contract between the parties, and that the contract is not represented by this written instrument of May 27, 1884, your verdict should be for the plaintiff for the amount that has been paid into court, which, it is conceded, is due.</p> <p>“ The plaintiff, however, claims, in the first place, that he made no such contract, and that his rights and obligations to the defendant are represented by this instrument of May 27, 1884. He claims that if there was no contract between him and the defendant, yet his services were reasonably worth the sum charged — ten per cent, upon the amount of the decree that was rendered ; and he has offered evidence by the witnesses, Mr. McCormick and Mr. Barton, who testified in your hearing tending to show that the services rendered in that case in which Mr. Moore was counsel — the Cazenove case — were reasonably worth the sum of two thousand dollars or ten per cent, upon the amount of the decree that was recovered in that case to the extent of Mr. Burke’s interest in that decree.</p> <p>“This instrument of May 27, 1884, bears the signature of Mr. Claughton. It purports to be an agreement between John W. Burke and others who may come into the agreement and Mr. Claughton, and is signed by Mr. Claughton. If it was assented to by Mr. Burke or by any others who come into the arrangement it would be binding not only upon him, Mr. Claughton, but upon Mr. Burke and such others as might come into the arrangement.</p> <p>“ Mr. Burke says he did not sign this paper and that it is not his agreement. It appears that it was prepared by Mr. McKenzie, who was the holder of a number of these bonds, and that, having been prepared by Mr. McKenzie, it was handed to Mr. Claughton for his signature, and, having been signed by Mr. Claughton, it was taken by Mr. McKenzie to the defendant and delivered to him, and remained in his possession from that time on. In order to be binding upon the defendant, Mr. Burke, it is not essential that he should have signed this paper. It is sufficient if he recognized it and acted upon it or gave Mr. Claughton reason to understand that he did recognize it and authorized him to act under it. Under such circumstances as these he is just as thoroughly and firmly bound by the terms of this agreement as if he had actually signed it.</p> <p>“ The question of fact for you to determine in this case, so far as this agreement is concerned, is simply this: Do the circumstances indicate that although this paper was not signed by Mr. Burke, yet it was his contract; that it was so understood between the parties, and that it was so treated by them and acted upon by them ? If you find from the circumstances in evidence that it was so acted upon and so acted upon and so treated by Mr. Burke and by Mr. Claughton, then the defendant is as much bound, as I have already stated to you, by its terms as if he had affixed his signature to it.</p> <p>“ Upon this subject I have granted instructions in behalf of the plaintiff, which I will, read to the jury: ‘If, after the contract of May 27, 1884, Bad been drawn up, the defendant recognized it and assented to it unconditionally and accepted services in his own behalf done thereunder by the plaintiff, he became as much bound by it as if he had signed it.’ ”</p> <p>“ ‘After such recognition and acceptance of service the contract acquired, as between the plaintiff and the defendant, all the qualities of other written contracts, so far, at least as to be equally free with them from explanation or change by secondary evidence.’</p> <p>“ ‘ In such case, upon the performance by the plaintiff of his agreement, viz., to fix by judgment the liability of the county of Clarke upon the bonds and upon such coupons as should not be due at the date of such judgment and the collection thereby of such coupons as should be due, he had a right to call upon the defendant to pay him ten per cent, upon such judgment, and upon the refusal of the latter to do so, then he is entiled to recover the same in this action.’</p> <p>“That is to say, gentlemen of the jury, the question of fact here is whether or not the defendant, after this paper was drawn up, recognized it and assented to it unconditionally and accepted the services of the plaintiff under it. If so, he became bound by it. The construction of a contract, then, is a matter for the court and not for you.</p> <p>“If the circumstances in evidence are suchas indicate that the defendant did not so conduct himself as to make this his contract, or if it appears that the evidence adduced in behalf of the plaintiff is not sufficient to satisfy your minds that this is the defendant’s contract, under the circumstances of this case, then he is not obligated by it.</p> <p>“ If this is the defendant’s contract and if the services were rendered by the plaintiff, as the evidence for both the plaintiff and defendant tend to show they were, and if the litigation in which Mr. Claughton rendered his services resulted in the fixing of the liability for the principal and coupons representing the interest due upon the county of Clarke and the railroad company and resulted also in fixing the liability or in the collection of the interest represented by the overdue coupons, then Mr. Claughton has thoroughly performed the services under his contract and it is simply a question of law what this contract means. • As matter of law, I tell you, gentlemen of the jury, that under this contract, if binding upon the defendant, the plaintiff is entitled to recover upon the decree so rendered the amount of ten per cent, upon the sum that is represented by the principal and interest of the bonds held by the defendant, Burke, which I believe is conceded to be nineteen hundred and eleven dollars.</p> <p>“ This question is presented by the fourth and fifth instructions granted to the plaintiff.</p> <p>“ ‘ The final decree in the Cazenove case directing payment of certain coupons and fixing liability for others and for the principal of the Clarke County bonds is a judgment within the meaning of that word contained in the contract in question.’</p> <p>“ ‘ If the jury believe that the defendant became a party to the writing of May 27, 1884, and that the plaintiff performed his part of the contract by obtaining a judgment fixing the liability of the county of Clarke upon the bonds and coupons due and to become due, then the plaintiff is entitled to recover in this action ten per cent, upon the principal and coupons of said bonds owned by the defendant, with interest thereon from the ■ 5th day of February, 1887.’</p> <p>“ In this connection I will advert for a moment simply to the letter that has been offered in evidence, dated October 16, 1884, from Mr. Claughton to Mr. Manning. The evidence indicates that at the time this suit was instituted in the Circuit Court of the United States at Richmond, in order to confer jurisdiction upon that court, which cannot take cognizance of controversies between citizens of the same State, it was necessary to find an outside plaintiff. Mr. Manning and Mr. Kellogg were found, who were citizens of another State; Mr. Manning, I believe, being a citizen of the State of Maryland, held some of these bonds. They were asked to come in and become parties to this suit simply for the purpose of conferring jurisdiction upon the Circuit Court of the United States. Mr. Manning demurred and desired to know what responsibility would be fixed upon him by becoming a party to this litigation. He said, in effect, that he did not desire to place himself in a position to assume liabilities which the bondholders in Virginia might be anxious to avoid, such as responsibility for costs, etc. Thereupon Mr. Claughton wrote this letter, in which he states to him with reference to this litigation which was then about to be instituted that the responsibility there, so far as fees were concerned, would be simply ten per cent. upon the amount of coupons representing interest that should be collected by that litigation. He says, in this letter, that the contract he has with Mr. Burke and others is to that effect.</p> <p>“ It has been sought to use that letter as an expression by the plaintiff in the way of an interpretation of this contract, so as to make the contract, contrary to its express terms and stipulations, relate solely to a compensation of ten per cent, upon the interest collected. In the first place, it appears to me to be very clear from the evidence that such was not the idea intended to be conveyed by Mr. Claughton at the time. That letter should be construed with reference to its subject-matter. Its subject-matter was the litigation which related solely to the collection of the interest and did not relate at all to the fixing of the liability for the bonds and coupons not due. The letter does not change the contract, which in terms is explicit, and relates clearly to a decree that should be obtained fixing liability, as well as relating to interest; and it cannot be taken into consideration by the jury as affecting this contract; that is a question of law for the court.</p> <p>“ The defendant, as I have stated to you, claims that he had but one agreement with the plaintiff, and that was for ten per cent, commission upon the amount of interest collected. I have granted these instructions relative to that .subject:</p> <p>“ ‘ If the jury shall find from the whole evidence that in the year 1884 the defendant employed the plaintiff as his counsel to obtain the payment of the interest then due and that to become due in respect of certain bonds referred to 'in the testimony in this case as Clarke County bonds, and .agreed to pay the plaintiff and the plaintiff agreed to receive and accept as compensation for his professional services in respect of the collection of said interest ten per •cent, of the amount of any interest that should be recov•ered or for which judgment should be obtained in respect <of said bonds, and if the jury shall further find that th defendant never promised or agreed to pay to the plaintiff for his professional services in respect of the said bonds ten per cent, on the amount of the principal of said bonds or on the amount of any judgment that should be obtained in respect of the principal of said bonds, then the the plaintiff is entitled to receive in this action a sum equal to ten per cent, of the amount of the interest recovered and received by the defendant in respect of said bonds, but the plaintiff is not entitled to recover ten per cent, of the principal of said bonds or any other sum in respect of the principal thereof.</p> <p>“ ‘ If the jury shall find from the whole evidence that the defendant received from Mr. McKenzie the paper-writing in evidence, dated May 27, 1884, signed by the plaintiff and put the same away in the safe of Burke & Herbert without reading the same or knowing its contents and never agreed or assented thereto and never at any time informed the plaintiff or authorized any person to so inform the plaintiff, then the defendant is not bound by the terms and conditions of said paper-writing.’</p> <p>“That is to say, if he received this as Mr. McKenzie’s paper and put it away in his safe without regarding himself as in any way a party to it and never assented or agreed to its terms and never gave the plaintiff reason to believe that he so assented or agreed to its terms, then he is not bound by it.</p> <p>“ The defendant’s instruction No. 4 relates to the tender that has been referred to in the evidence.</p> <p>“There is still another theory upon which the plaintiff has a right to recover, and that is the theory that there was no contract at all between these parties. If there was no contract between them and the compensation was not agreed upon at any fixed sum, then the plaintiff is entitled to recover from the defendant in this action such sum as his services were reasonably worth.</p> <p>“ Upon that theory of the case the plaintiff has offered evidence tending to show you what these services were reasonably worth. The defendant, on the other hand, has offered by Mr. Moore testimony tending to show what he charged for his services.</p> <p>“ Now, to sum it all up, gentlemen of the jury, if there was a prior contract or agreement of an oral character between the plaintiff and the defendant relating to the services to be rendered in this regard, and that contract contemplated the payment of ten per cent, only upon interest collected, that contract would regulate and control the right of the plaintiff in this connection, unless it were subsequently absorbed by a new contract in writing — that is, this contract of May 27, 1884.</p> <p>“If the contract of May 27, 1884, in your judgment, under the evidence in this case, became the contract of the defendant, then it regulates the right of recovery entirely, and the plaintiff is entitled to recover the amount of nineteen hundred and eleven dollars from the defendant.</p> <p>“ If there was no contract between the parties under the circumstances of this case, then the plaintiff is entitled to recover for his services what they were reasonably worth, and you should consider the testimony that has been offered upon that point both in behalf of the plaintiff and the defendant.</p> <p>“ If there was a contract solely relating to the recovery of interest, the amount of that interest has been tendered into court, and your verdict should be for that amount provided that there was no contract covering the whole amount of principal and interest which is embodied in the paper of May 27, 1884.” — Reporter.]</p>

Hearing on an appeal by the plaintiff from a judgment on an agreed statement of facts in a landlord and tenant proceeding, in which a plea of title was interposed. The Court in its opinion stated the case as follows: The appellant, the Eastern Trust and Banking Company, is a corporation created by act of legislature of the State of Maine, and is fully empowered to receive conveyances in trust and to perform all the duties of trustees.

Hearing on an appeal by the plaintiff from a judgment on a verdict directed by the court in an action to recover damages for personal injuries.

<p>Promissory Notes, Negotiability of ; Judgments on Notes.</p> <p>1. If by the law of a foreign jurisdiction a promissory note payable there is negotiable which provides that in event of non-payment an addition of ten per cent, on principal and interest shall be added for collection fees, it will be treated as negotiable here, and an indorsee may sue thereon in the courts of this District.</p> <p>2. When such a note bears interest at eight per cent, until paid, which rate is allowed in the jurisdiction where the note was made, the judgment thereon is properly for the principal with interest at eight per cent, until paid.</p>

<p>Hearing on an appeal by the District of Columbia from a judgment on verdict in an action to recover damages for personal injuries.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an appeal from a judgment for damages recovered on behalf Alice M. Boswell, a minor, for injuries received by her through a defect in the sidewalk on C street in the city of Washington. The accident occurred on May 5, 1888, which was the fifth anniversary of the child’s birth. She was playing with a little boy about her own age, named Fitzpatrick, on the brick sidewalk in front of his home, and nearly opposite her own. Whilst running about in play she stumbled and fell over a gas box which projected slightly above the surface of the sidewalk. In the fall she sustained a transverse fracture of the thigh bone which has resulted in the permanent shortening of the leg at least one-half an inch. The testimony tended to show that the rim of the gas box on three sides extended some half an inch above the surface of the sidewalk. On three sides of this rim the adjoining bricks extended above the same. On one of these sides a half-brick protruded about three-quarters of an inch above the rim. The box is from eleven to fourteen inches from the iron railing separating the sidewalk from the parking. A plaster cast of the gas box and the surrounding bricks, the substantial accuracy of which was well attested, was shown to the jury on the trial, but has not been exhibited here.</p> <p>A witness who lived near by and saw the child fall, said that she (witness), had stumbled over the same gas box more than once before that time. James M. Fitzpatrick, the father of the little boy who was at play with plaintiff, had lived near the place for a number of years. He described the gas box and the condition of the surrounding bricks as stated above, and said that he had noticed its condition a year before the accident, and had seen people stumble over it, and had once complained of it to his landlord.</p> <p>The court refused the defendant’s prayer to direct a verdict for it, and submitted the questions of negligence and contributory negligence to the jury, who found for the plaintiff. Motion for new trial was overruled, and judgentered upon the verdict.</p> <p>[The prayers requested on behalf of the defendant which were modified by the court and given as modified and those refused were as follows :</p> <p>“i. The jury are instructed that upon the evidence in this case the defendant is not liable, and their verdict should be for the defendant.” Refused.</p> <p>“2. If tlie jury believe from the evidence that the plaintiff by her own negligence directly contributed in any degree to the injury complained of, they should find for the defendant.” Modified by omitting words “in any degree,” and then granted.</p> <p>”8. The jury are instructed that the negligence of the defendant must appear from the evidence in this case by affirmative proof, and that if they find that such evidence is equally consistent with either the existence or non-existence of negligence on the part of the defendant their verdict must be for the defendant.” Modified by striking out all after the the word “proof” and then granted. „</p> <p>“ 9. The jury are instructed that such a defect and obstruction as is shown by the evidence in this case to have existed in the sidewalk at the time of the plaintiff’s alleged fall is not in itself a dangerous defect or obstruction, and unless the jury believe from the evidence that the defendant had. knowledge or notice that this particular defect or obstruction had become dangerous, their verdict should be for the defendant. Refused.</p> <p>The defendant excepted to the modification of its second and eighth prayers, and to the refusal of its first and ninth prayers, and also to the action of the court in granting each of the prayers requested by the plaintiff. The other prayers requested by the defendant, and which the court granted and those given on behalf of the plaintiff, are included in the charge of the court, which Was as follows:</p> <p>“ The law does not require a city to respond in damages for every injury that may be received on a public street. The city is not required to have its sidewalks so constructed as to secure absolute immunity from danger to those who use them. Its duty is only to use due and proper care to see that its sidewalks are reasonably safe for persons exercising ordinary care and prudence. As has been said by counsel, this city is not an insurer against accidents upon the sidewalks. The defect in the sidewalk must be the direct and proximate cause of the injury complained of, in a lawsuit such as this. Whether the sidewalk is in a reasonably safe condition for travel in the ordinary modes is a practical question, to be determined by practical meñ in such case according to its particular circumstances. In this case you are to weigh the testimony and determine whether or not the plaintiff, Alice Boswell, then a child five years old, while walking or playing on C street south between First and Second, east, stumbled over a defect in the sidewalk caused by a projection or depression of the bricks, or both, around about the gas box described by the witnesses, and whether she fell and suffered thereby a transverse fracture of the thigh bone. If you find that the plaintiff suffered such injury,‘in such manner and from such cause, you are then to determine, under the instructions I shall presently read to you, whether the defect in the sidewalk was dangerous and unsafe for children like the plaintiff, exercising ordinary care, such as a child of her years should use or would use in passing or playing there ; and if you find this defect in the sidewalk dangerous and unsafe, before the defendant can be found responsible for the injury which resulted to the plaintiff you must find further that the defendant, the District government, had notice or knowledge of this condition — not reasonably safe — so that it had time to put it in repair and obviate the danger to the plaintiff and others. This notice which was much discussed by counsel in argument before you, may be actual or constructive. There is no evidence of actual notice in this case to the District authorities. You are therefore to consider whether the defendant had constructive notice or knowledge of such defect. If you find that there was such a defect — that is to say, whether the District authorities, within the scope of their opportunities and money, being under an obligation by law to exercise a general supervision of the sidewalks and to keep themselves informed about their condition — if a sidewalk remains in a dangerous or unsafe condition so long that the authorities by ordinary care and diligence could not help knowing that fact and did not know it because they failed to exercise proper watchfulness, then the law imputes notice to them, and that is constructive notice. If, therefore, you find that this sidewalk was at the time of this injury in an unsafe condition, you must further determine from the evidence whether prior to that time this sidewalk had continuously remained in such an unsafe condition so long that the District authorities ought to have known it if they exercised ordinary care. If you find such notice or knowledge you must further determine (before the plaintiff can recover for such negligence and want of ordinary care on the part of the District authorities in keeping this sidewalk in a reasonably safe condition for passers-by), you must further inquire whether the plaintiff by her want of care contributed to the happening of the injury which she suffered. If you are convinced upon all the evidence fhat she did not, then your verdict should be for the plaintiff and you should award damages, to be measured according to the instruction I will presently read to you. It has been read by counsel, I believe. On the other hand, if you fail to find for the plaintiff any of the essential facts I have thus indicated to you that you must find by a preponderance of evidence, your verdict should be for the defendant. With this general statement of the law I will now read the instructions the court has granted, without comment or possibly with brief comment. I will read to you the first instruction granted on behalf of the plaintiff with respect to the measure of care a city must exercise about its sidewalks.</p> <p>“ ‘ i. The jury are instructed as matter of law that the defendant is bound to put and keep all public streets and sidewalks in the city of Washington in such condition and state of repair as to make all parts of such streets and sidewalks reasonably safe for the kind of public travel for which they are respectively designed. It is not sufficient that such streets and sidewalks are in such condition as to be reasonably safe in daylight or in good weather, or to adults. Their condition must be such that they will be reasonably safe in all conditions of light and weather in which the public are entitled to use them and to children as well as to adults. ’ ” And you should particularly regard the second instruction, as it concerns a very important part of your inquiry:</p> <p>“ ‘ 2. If the jury shall find from the evidence that on the 5th of May, 1888, there was a defect consisting in one or more projections or depressions, or both, about the gas box in question, in the public sidewalk on C street, south, and if they further find from such evidence that such defect was of such nature as to be dangerous to persons passing along the street, then in determining whether or not said defect was known to the defendant it is not necessary to find in the evidence actual notice of such defect to the defendant; but if such defect from its character, notoriety, or continuance ought to have been known to the defendant, then such notice shall be imputed to it, to the defendant.’ ”</p> <p>“ This instruction involves, perhaps, the most difficult inquiry for you to determine. Was this place dangerous or unsafe? Was it from its character or notoriety or long continuance such a defect that the authorities ought to have known it? Shall notice be imputed? As I have told you, notice may be imputed to the city in a proper case.</p> <p>“ And the third instruction : ‘ If the jury shall find from the evidence that the said defect had existed for six months prior to the accident to the plaintiff, if they shall find such accident from the evidence, knowledge on the part of the defendant of the existence of such defect may be reasonably inferred by them from such continued existence of said defect.’</p> <p>“ In this instruction I have said, going somewhat further with respect to time than in the last instruction, if you find the defect and find it dangerous, six months’ continuance of such unsafe condition should impute notice to the District authorities.</p> <p>“ And the fourth instruction, with respect to the degree of care used by a child passing and using a sidewalk and playing thereabout: ‘ In determining the question whether or not the plaintiff was using and exercising due care in passing along the sidewalk the jury are instructed as matter of law that of an infant of tender years less discretion is required than of an adult. By an adult there must be given that care for his own protection that is ordinarily exercised by persens of intelligence and discretion. If he fails to give it, his injury is the result of his own fault, and cannot be visited upon another. Of an infant of tender years less discretion is required than the degree required of age and knowledge. Of a child of three years of age less caution would be required than one of seven ; of a child of seven less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child.’ And in that connection the fifth instruction is given you :</p> <p>“ ‘ If the jury shall find from the evidence that on the fifth of May, 1888, there was in and around the public sidewalk of C street, south, one or more depressions or defects, or both, about the gas box in question, dangerous to persons passing along said sidewalk, and that such depressions or projections, or both, had existed for so long a time prior to that that the defendant ought reasonably to have known of its or their existence, and if they shall further find that on that day, at that place, and by reason of such condition about the gas box the plaintiff was then and there injured, they shall find a verdict for the plaintiff, unless they shall further find from the evidence that the said injury was caused by the negligence of the plaintiff, which question of negligence they are to determine with respect to the plaintiff’s- then age and knowledge and from all the circumstances of the case, bearing in mind that less discretion, care and caution is required of a child of tender years than of an adult, and the caution required is according to the maturity and capacity of the child.’</p> <p>“ And finally, after this instruction to go with you in considering the case on behalf of the- plaintiff, the following instruction as to the measure of damages, in case you should find a verdict in favor of the plaintiff:</p> <p>“ Tf the jury shall find from the evidence that the plaintiff is entitled to recover, then it will become their duty to assess from the evidence the damages which the plaintiff has sustained from the injury complained of in the declaration. In fixing the amount of her damages the jury will estimate and ascertain from the evidence such sum of money as will compensate her for the pain and suffering, mental and physical, caused to her by the said injury, and they will include in the estimate of damages such injury to the broken leg of a permanent nature as the evidence may show to have been suffered by her, and the fact of such permanent injury, if they shall .so find it, upon her future in life.’</p> <p>“ That is given to you because in the event that you should find for the plaintiff you are not to assess damages wildly or capriciously, but according to the elements of damage, which I have read slowly so that you may retain it in your mind. Now, with respect to instructions in behalf of the defendant, the court instructs you in the first place:</p> <p>“ ‘ If the jury believe from the evidence that the plaintiff by her own negligence directly contributed to the injury complained of they should find for the defendant.’</p> <p>“ I have already endeavored to state that part of the case so far as you may consider it of moment in this case upon all the evidence. And in the same connection—</p> <p>“ ‘ The jury are instructed that it was the duty of the plaintiff while upon the public sidewalk to use such reasonable care and caution to avoid injury as children of her age, maturity and capacity would use under the same circumstances, and that in determining whether the plaintiff used such care and caution at the time of the alleged injury the jury will consider c,the nature of the alleged defect in the sidewalk, whether it was visible or not, the knowledge of the plaintiff of its condition at a time previous to the alleged injury, and such other facts or circumstances disclosed by the evidence as tend to show the alleged negligence or the absence of it, and if they find from the evidence that the plaintiff was guilty of any negligence which directly contributed to the alleged injury, then she cannot recover, and they will find for the defendant.’</p> <p>“ Now, I have granted the following instruction:</p> <p>“ ‘The jury are instructed that the defendant is not an insurer against accidents upon its streets, nor is it liable for injuries resulting from an obstruction or defect therein except upon neglect on its part to repair or remove the same within a reasonable time after notice of knowledge of said obstruction or defect.’</p> <p>“And I desire you to recollect, in connection with that instruction, what I have already explained the law to mean by constructive notice in connection with the facts in this case.</p> <p>“You have already heard it stated in your presence that the plaintiff has abandoned the first and second counts in the declaration in this suit. The third count remains. A count is a legal statement of the plaintiff’s cause of action; that is all it means. I have granted the following instruction on behalf of the defendant:</p> <p>“ ‘ There can be no recovery under the third count of the plaintiff’s declaration unless the jury find from the evidence that the plaintiff struck one of her feet against an obstruction in said C street, consisting of an uneven' condition of the bricks composing the sidewalk of said street, immediately surrounding a gas box in said sidewalk, of which said bricks one or more projected above the top of said gas box and one or more were depressed below the top of said gas box.’</p> <p>“ That instruction is almost a statement of what I have just described to you as the essence of the plaintiff’s statement of the third count or the statement on which you are to try the plaintiff’s cause of action, and in granting it I caution you that you must find substantially, from all the evidence, not literally, these facts to justify a verdict for the plaintiff, and I read the following instruction in the same connection:</p> <p>“'The jury are instructed that the burden of proof is upon the plaintiff to show affirmatively by a preponderance of testimony that the accident whereby she was injured was the result of negligence on the part of the defendant in not keeping the sidewalk on C street, at the place where the accident occurred, in proper condition and repair, and that if she does not show such negligence by such preponderance of evidence, then she is not entitled to recover, and the verdict should be for the defendant, and you are instructed that the negligence of the defendant must appear from the evidence in this case by affirmative proof.’</p> <p>“You will remember, gentlemen of the jury — you who have been engaged in trying criminal causes — that this is a civil case, and, unlike criminal causes you have been trying, you are to decide this case by the preponderanee of the proof. The burden of proof is on the plaintiff to show affirmatively by a preponderance of testimony that the injury which she sues for is the result of negligence on the part of the District authorities in not keeping this sidewalk in proper and safe condition. I shall not further attempt to define what is meant by preponderance of proof of negligence and affirmative proof in this connection, for fear that to plain and practical men further definition might becloud what I seek to make plain. Now, further, the last instruction I read you in brief in respect to the negligence being made to appear from the evidence in this case by affirmative proof, I shall only add that this simply emphasizes this caution, that the essential point, the negligence of the defendant, must appear by the preponderance of the proof and must affirmatively appear, and this further instruction has been granted, the last T shall read to you :</p> <p>“ ‘ The jury are instructed.that there is no evidence of express notice to the defendant of any defect or obstruction in the sidewalk complained of, and their verdict must be for the defendant unless the jury find from the evidence that such defect or obstruction was dangerous and so notorious and conspicuous in its character and had continued so long a time that the authorities charged with the inspection of the street would in the proper performance of their duty have known it.’</p> <p>“ This prayer, like the one of the plaintiff’s I read almost in the beginning, involves the most delicate and difficult part of your inquiry. Upon all the evidence the court has determined that you must decide — that it is your province to decide — upon the best testimony in this case, the important question whether or not the condition of projection or depression around about this gas box constituted a defect, a dangerous obstruction and unsafe place in the sidewalk to passers-by, and for you as practical men to determine it as a question of fact, and, if you decide such was its condition, was this obstruction so noticeable, so conspicuous, that the authorities ought to have by ordinary care and inspection discovered it, and had it so long continued that the authorities had had time enough by using ordinary care to have known it and to have corrected it or repaired it. With those instructions you will consider the testimony before you, gentlemen of the jury, measure it upon the side of the plaintiff and defendant, again cautioning you, who have tried more criminal than civil causes, that your verdict must be by the preponderance of the evidence, and as you may find it you will find for the plaintiff or defendant, and if you find for the plaintiff you will say in what sum of money you assess the damages to the plaintiff, and if you find for the defendant you will simply say you find for the defendant.”</p>

Hearing on an appeal by executors from a decree of the Orphans’ Court entered in accordance with a mandate of this court on a former appeal. The Court in its opinion stated the case as follows : This is the third or fourth appeal in the present case.

Hearing on an appeal by one of three defendants from a judgment under the seventy-third rule in an action on a promissory note. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the defendants from a decree appointing receivers pendente lite in a judgment creditor’s suit.</p> <p>The Court in its opinion stated the case as follows :</p> <p>This is an appeal from an interlocutory order or decree of the Supreme Court of the District of Columbia, sitting in equity, whereby receivers were appointed in pursuance of a bill in equity in the nature of a creditors’ bill in aid of proceedings at law.</p> <p>From the bill it appears that the appellee, the Walter T. Bradley Coal, Lime and Cement Company, a corporation under the laws of the State of Pennsylvania, on November 3, 1894, procured a judgment on the common law side of the Supreme Court of the District of Columbia against the appellants, T. Edward Clark, Jr., Allen B. Clark and George B. Clark, for the sum of $1,159, with interest; that a writ of execution thereon had been issued on the same day, and two days thereafter, on November 5, 1894, returned “nulla bona; ” and that the judgment remained wholly unpaid and unsatisfied. It also appeared, according to the allegations of the bill, that the judgment debtors were not the owners of any property in the District of Columbia subject to execution at common law ; but that there was certain real estate which they had fraudulently conveyed away, and certain personal property which they had fraudulently assigned, all of which it was the purpose of this suit to reach and subject to the satisfaction of the above mentioned judgment.</p> <p>T. Edward Clark and George B. Clark, being the owners of lot 186, in square No. 856, in the city of Washington, mortgaged the same, on May 4, 1893, to secure the payment of $1,750, with interest, in five years thereafter, to the American Security and Trust Company; and subsequently, on December 13, 1893, being the owners also of lot 187 in the same square, they mortgaged both lots to secure the payment of $1,600, with interest, in one year thereafter, to Thomas W. Smith. Then, on September 18, 1894, the same two parties conveyed the two lots absolutely to the Clark Brothers Lime and Cement Company, a corporation, which, it is alleged, the three Clarks had organized under the laws of the State of Virginia for the purpose of defrauding the appellee by placing their property as far as possible beyond its reach and the reach of legal process. On the same day, September 18,1894, T. Edward Clark and George B. Clark, who were dealers in lime, cement, plaster and such like things, as well as owners of horses, wagons, and other articles used in the conduct of the business, executed also and placed upon record a bill of sale to the corporation so organized by them of all their business and property, including their book accounts, bills payable, the good will of the business, and so forth.</p> <p>On the next day (September 19, 1894), Allen B. Clark, who was the owner of a large and prosperous business as a dealer in sand, and the owner as such of book accounts of great value, horses, wagons, and the like, executed and placed upon record a bill of sale of all said business, property, book accounts, and the like, and the good will of his business to the same Virginia corporation.</p> <p>At the time of the execution of these bills of sale, and long prior thereto, it is alleged that the Clarks were indebted to the appellee on the account for which it subsequently recovered the judgment before mentioned; and that the bills were executed for the purpose of defrauding the appellee, as had been likewise the conveyances of real estate to the Virginia company.</p> <p>This company, it is stated, had been formed by the Clarks for the express purpose of transferring their property to it, and thereby delaying and defrauding the appellee, the complainant below. They held and owned all the stock; or, if there were any stock standing in the name of other persons they were merely nominal holders, introduced merely for the purpose of complying with the requirement of the laws of Virginia in regard to the number of persons necessary to form a corporation. The Clarks themselves continued to carry on their respective business at the same places and in the same manner as before, without any supervision from the Virginia corporation; and it was charged that they were each and all of them insolvent; were collecting their assets and wasting them, and were making away with their property in fraud of the complainant’s rights.</p> <p>The complainant had commenced a suit at common law on August 30, 1894, but had been compelled to discontinue it on September 27 thereafter, on account of some defective pleading ; whereupon it immediately commenced the suit in which it recovered judgment, as before stated. Soon after this recovery of judgment the appellee, as complainant, filed his original bill in this cause. Upon demurrer, interposed it filed, on February 20, 1895, an amended bill, which is the bill in the record before us and from which the facts hereinbefore stated have been extracted. The prayer of this bill was for discovery, the vacation of the alleged fraudulent- conveyance and bills of sale, and the appointment of a receiver to take possession of all the property and effects included in the bills and to hold them subject to the further order of the court.</p> <p>To this amended bill there was a plea interposed by the Clark Brothers Lime and Cement Company, sworn to by George B. Clark as its treasurer, to the effect that it was a bona fide purchaser for value without notice of the complainant’s claim. The Clarks demurred. There was a hearing of the application for the appointment of a receiver pending the suit; and receivers were thereupon appointed by the court to “ take possession of all the goods, chattels, effects, books of account, bills receivable, promissory notes and other evidences of indebtedness belonging to or claimed by the said defendants Clark and the Clark Brothers Lime and Cement Company,” “ with authority to collect and receive payment of any such bills receivable, promissory notes and accounts current.” And from this order the defendants, the three Clarks and the Clark Brothers Lime and Cement Company, have prosecuted the present appeal.</p>

<p>Hearing on an appeal by a defendant indicted and convicted of murder.</p> <p>The Court in its opinion stated the case as follows :</p> <p>The appellant, James L. Travers, has been convicted of the murder of one Lena Gross, in the District of Columbia, on November 19, 1894, and has been sentenced to death.</p> <p>Independent of the confessions of the prisoner, there was testimony showing that he and Lena Gross had lived together as man and wife ; that she had been seen walking with him on the Brightwood road between seven and eight o’clock on the morning of November 19th ; that groans were heard in the woods, and Travers was seen coming therefrom after-wards ; that he had made threats against the life of the woman. The dead body of the woman was found in the woods on the same day, concealed by leaves and branches of trees. Her throat had been cut, "the gash extending from a point under one ear to a point under the other ear and backward to the spinal column.”</p> <p>Travers, when arrested, said that he had left deceased asleep at Bronson’s house at six o’clock in the morning and had not seen her afterwards. The surgeon who examined the body of deceased testified to a severe bruise or contusion upon the left side of her head, extending to the left eye and that the cut in the throat seemed to have been made by a single blow of a sharp instrument.</p> <p>Travers made a confession of guilt to the officers at the station-house during the evening and night, and in order to test its truth he went voluntarily with them to the scene of the killing at night. He told them where to stop the wagon near the woods, and led them to the place where the body had been found, and where a blood stain was found on the ground. He conducted them to a manure heap where they uncovered the hat of deceased, which he had concealed therein. He also pointed to the dense brush where he said he had thrown the razor, but it was not found.</p> <p>The prisoner made several statements concerning the homicide before the visit to the scene, and while there. After returning to the station-house he made a full confession, which was written down, and signed by him. After hearing testimony as to the manner in which the confession was made and to the accuracy with which it had been recorded, it was permitted to be read in evidence. Omitting formal caption and conclusion it reads as follows :</p> <p>“ I left my house about half past two o’clock in the morning on Monday, November 19th, 1894, to go to work at Mr. Robinson’s, on Brightwood avenue. Between seven and eight o’clock the same morning Lena Gross came down to Mr. Robinson’s place after me. I was sitting down on the bars when she arrived. The first words she uttered were, ‘Where is my money?’ I replied, ‘ I have not the money with me.’ She replied, ‘ Ain’t you got it with you— I want to go to town?’ She further remarked, ‘ Come, hurry up and give it to me ; I want to go and buy a skirt and make it today, so I can go to service.’ I then walked away towards Robinson’s house and she followed me. I told her she had better let me buy it for her. She again replied, she wanted to get it and make it up today, so that she could go into service tomorrow. She added, ‘You do nothing but tell me lies and give money to other women.’ I said, ‘ Lena, you can’t say that; you know I give you three to four dollars every Saturday night — all I make.’ All this took place while we were going along towards Mr. Robinson’s stables. '</p> <p>“ (I have been living with her as my wife since the 12th of December last, 1893, but not married). •</p> <p>“ I left the stable and went to the woods to ‘ do a job.’ I left her sitting on a wheelbarrow in the stable yard. She came to me in the woods while I was there, in the act of buttoning up my clothes. I then went further into the woods and she followed me, asking for money. -I went near to the place at which I afterwards killed her. She said I was the most ‘ honory son a bitch that ever lived.’ I remarked, you called me that yesterday by the ‘ wine-house.’ This conversation took place about five yards from the place where I killed her. She then took a razor from her stocking. I walked up to her, saying ‘ What are you trying to do? Are you trying to bluff me? You have already cut one man, but don’t think you can cut me.’ So .saying, I tried to take the razor from her, and in so doing I shoved her down; while she was down I choked her. She got up and got a rock to throw at me. I then slapped iier with my hand and walked away from her towards the house. She then went and sat down by the stumps where I afterwards killed her. She called me back to kiss her. She put both of her arms around my neck, having the razor in her hand. I took it from her and hit her with my fist. She fell right back, sprawling on the ground. I thought I had killed her and went back to see, and found I had not; having the razor in my hand, I bent down and cut her throat. I then covered her over with dry brush and leaves and went away, believing she was dead. I intended returning at night to bury her. I took her hat and buried it in the manure heap to prevent detection. I also threw the razor away into the woods, as it was bloody and the handle was broken off.”</p> <p>The coroner also testified that at the morgue, the day after the killing, he heard the prisoner’s statement, in the course of which he said that the deceased lifted her skirt and took the razor from her stocking, and he said to her: “You cut another man,” and then struck her and knocked her senseless, and did not like to see her suffer, and so he went back and pressed the razor into her throat.</p> <p>On the trial the defendant offered himself as a witness, and his testimony is here given in full to show his version of the means used to elicit his confessions, and also the changes made in the story of the homicide:</p> <p>James Travers, the defendant, was duly sworn and testified that he had been living with Lena Gross as husband and wife; never had any trouble with her before; never had threatened to do her any harm ; did not remember what he told Dr. Glazebrook; did not remember saying anything to anyone at police headquarters about the killing. He further testified that while he was in the cell at the station house an officer came to the door and said to him (Travers), “What did you cut her insides with? What did you hit her with?” Then this officer went away and another one came up and said, “ We are dead on to you. You can’t get out of it by saying you did not do it.” Then another police officer said, “ I see the rope going around your neck now; ” and the defendant further stated he was then very much excited and afraid, and after the officer had left him another officer came up and said, “ You had better say you did it; it will be ten times better for you,” and he testified he then said he did it. The officers then took him in a patrol wagon to Brightwood. The wagon was full of officers and he was handcuffed to an officer. When they returned to the station house it was then past two o’clock in the morning. One of the officers said something about putting it up in the best advantage. Two officers sat next to me and a man sat at a table writing and another man told him what to write. I did not know what they said to me or what I was doing, I was so frightened and excited. The witness further testified he did not say, “ I went away and came back and cut her throat.”</p> <p>The witness then testified that he was in the road near the fence when Lena Gross came up to him. She asked him for some money, and he told her he did not have any. He said, I was walking towards the house and she, Lena, followed me. Wanting to “do a job,” I left her and went into the woods. She then came into the woods where I was ; she then cursed me and I left her, going further into the woods, but towards the city, so as to get away from her; she followed me and again asked me for money. I told her I would get it for her later, but did not have it now. She said, “You are trying to get away from me.” I said, “ No ; you know why I came up here.” She then pulled up her dress and took a razor from her stocking. I then said, “ What are you trying to do ; you have already cut one man, but don’t cut me.” I then tried to take the razor from her, and in so doing the handle was broken, but she held on to the razor. I then left her and walked towards the stable. I was very much afraid. She got a rock and threw it at me. She then went and sat down under a tree and said, “ Come here, come here, come here, I say.” But I would not go back, and she said, “ Come here, come here, come back and kiss me.” I was afraid of her, but thinking she wanted me to make up I went back to her. She was sitting on the stump and I knelt down next to her. She put her arms around my neck and said, “ Kiss me.” I then noticed she had the razor in her hand and was about to cut me. I grabbed at it and she grabbed my mustache in her teeth, and we struggled for the razor. I was so excited I did not know just what had happened. I was afraid she would cut me and I wanted to get her teeth out of my mustache and stop her from cutting me, and also to take the razor away. We struggled — my hands were hold of hers and hers hold of mine, razor in her hand — and the first thing I knew she fell back and her throat was cut; I don’t know how, but during the struggle. I was then so scared I did not know what to do. I threw a lot of leaves over her. During the struggle we were both on the ground, she sitting on the stump and I on my knees, in front of her. Defendant said he did not intend to cut Lena Gross or to harm or kill her, and did not know she was cut till she fell back, bleeding.</p>

Hearing on an appeal by the District of Columbia from a judgment entered on the return of a writ of certiorari quashing and vacating certain proceedings taken for the purpose of assessing a water main tax. The facts are sufficiently stated in the opinion.

Hearing on an appeal by the District of Columbia from a judgment entered on return of a writ of certiorari quashing and vacating proceeding taken to levy a special improvement tax. The facts are sufficiently stated in the opinion.

<p>Hearing on an appeal by the complainants from a decree dismissing a bill for partition.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the Commissioner of Pensions from a judgment directing a writ of mandamus to issue to compel the vacation of an order reducing petitioner’s pension.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from a judgment directing a writ of mandamus to issue to the respondent, William Lochren, Commissioner of Pensions, commanding him to vacate and reverse an order made by him reducing the pension of the relator, Charles D. Long, from $72 per month to $50 per month.</p> <p>The petition was ordered dismissed as to Hoke Smith, Secretary of the Interior. The facts set forth in the petition and return, together with the statutes referred to, may be substantially stated as follows :</p> <p>Charles D. Long, a private soldier, was severely wounded in the battle of Wilmington Island, Georgia, April 16, 1862. A shot in the left arm necessitated its amputation above the elbow. Another was received about the point of the left hip, the ball passing through the bone and lodging, it is supposed, somewhere in the right groin. The wound has never healed, constantly discharges pus and requires to be dressed at least twice in every twenty-four hours. Having but one arm he cannot dress the wound properly and that service has to be performed by others. His general health has not been affected and he walks about with the use of a cane. Having been honorably discharged from the army, relator returned to his home in Michigan, studied law, and was admitted to the bar. About January 1, 1888, he became a judge of the Supreme Court of Michigan, a position which he still holds in the active discharge of his duties.</p> <p>Relator’s first application for a pension was made July 16, 1862, under the act of that year, and described his wounds in the arm and abdomen fairly. This was granted, and on February 28, 1863, he entered upon the receipt of $8 per month which was the amount allowed a -private soldier for an unspecified “ total disability,” ordinarily called a “ total.”</p> <p>The act of June 6, 1866, established the following rates of .pensions:</p> <p>1. For those who had lost both eyes or both hands, and those otherwise so permanently and totally disabled as to render them utterly helpless, or so nearly so as to require the constant personal aid and attendance of another person, $25 per month.</p> <p>2. For those who had lost both feet, or one hand and one foot, or were otherwise so disabled as to be incapacitated from performing manual labor, but not so much as to require constant personal aid and attendance, $20 per month.</p> <p>3. For those who had suffered the loss of one hand or one foot, or had been permanently disabled in the same, $¡15 per month.</p> <p>On July 31, 1866, relator made an application for an increase to $15 per month under the foregoing statute, and again described the amputation of his arm, as well as the wound in the left hip, which he said “ has never healed and causes deponent great discomfort.” The increase for the loss of the hand was duly made. The act of June 8, 1872, made some changes in the specification of disabilities in the foregoing act and increased the rates therein to {831.25, $24 and $18 per month, respectively, and relator on August 10, 1872, applied for and received the increase to $18 per month for the loss of his hand.</p> <p>The next act of Congress, in order, is that of March 3, 1873, found in sections 4697 and 4698, R. S. The first section of this act provides, for certain classes of pensions, certain rates to commence July 4, 1864, and run to June 3, 1872. The second makes an increased rate from and after June 4, 1872, for certain classes. Among these those “ who shall have lost the sight of both eyes, or shall have lost the sight of one eye, the sight of the other having been previously lost, or shall have lost both hands, or shall have lost both feet, or been permanently and totally disabled in the same, or otherwise so permanently and totally disabled as to render them totally helpless, or so nearly so as to require the regular personal aid and attendance of another person, shall be entitled to a pension of $31.25 per month; and all persons who, under like circumstances, shall have lost one hand or one foot or been totally and permanently disabled in the same, or otherwise so disabled as to be incapacitated for performing any manual labor, but not so much as to require regular personal aid and attendance, shall be entitled to a pension of $24 per month.” Another class, “ otherwise so disabled as to render their incapacity to perform manual labor equivalent to the loss of a hand or foot,” were to have $18 per month.</p> <p>Another part of the same act (sec. 4698^), provides: “ Except in cases of permanent specific disabilities, no increase of pension shall be allowed to commence prior to the date of the examining surgeon’s certificate establishing the same, made under the pending claim for increase, and in this, as well asi all other cases, the certificate of an examining surgeon, or of a board of examining surgeons, shall be subject to the approval of the Commissioner of Pensions.”</p> <p>An act of June 18, 1874, to take effect from 4th of the same month, provided that all who were then entitled to pensions under existing laws, and who shall have lost either an arm at or above the elbow, or a leg at or above the knee, shall be rated in the second class and receive $24 per month.</p> <p>Another act of June 18, 1874, dating also from the 4th, reads as follows:</p> <p>An act to increase the pension of soldiers and sailors who have been totally disabled.</p> <p>Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section four of the act entitled “ An act to revise, consolidate, and amend the laws relating to pensions,” and approved March third, eighteen hundred and seventy-three, be so amended that all persons who, while in the military or naval service of the United States, and in the line of duty, shall • have been so permanently and totally disabled as to require the regular personal aid and attendance of another person, by the loss of the sight of both eyes or by the loss of the sight of one eye, the sight of the other having been previously lost, or by the loss of both hands, or by the loss of both feet, or by any other injury resulting in total and permanent helplessness, shall be entitled to a pension of fifty dollars per month ; and this shall be in lieu of a pension of thirty-one dollars and twenty-five cents per month granted to such person by said section: Provided, That the increase of pension shall not be granted by reason of any of the injuries herein specified, unless the same shall have resulted in permanent, total helplessness, requiring the regular personal aid and attendance of another person.</p> <p>Relator made no application for increase under the act of March 3, 1873, or under the second of the acts of June 18, 1874, above recited, but did apply for and receive an increase to $24 per month for the loss of an arm above the elbow as provided in the first of said acts of June 18, 1874.</p> <p>By act of June 17, 1878, the pensions of all who had lost either both hands, or both feet, or the sight of both eyes, were increased to $72 per month, and on June 16, 1880, it was further enacted that the pensions of all who are “ now receiving a pension of $50 per month” shall be increased to $72.</p> <p>On August 15, 1881, relator made an application for increase, without specifying the particular statute under which he claimed the same, in which he referred to his certificate at the $24 rate, and based his claim for the increase on the wound in his hip, of which he said: “ Said wound has never healed and requires bandaging and dressing every day and has every day since it was received, discharging frequently to such an extent as to stain through dressing and bandage and clothing, and causing shrinking of the hip, and at times much lameness and soreness of the left hip.” This application was denied by Commissioner Dudley October 18, 1881.</p> <p>The act of March 3, 1883, gave to all who “ shall have lost an arm at or above the elbow, or a leg at or above the knee, or shall have been otherwise so disabled as to be incapacitated for performing any manual labor, but not so-much as to require regular personal aid and attendance,” a pension of $30 per month. On March 21, 1883, relator made application thereunder and received the increase to $30.</p> <p>March 13, 1884, relator wrote a letter to a member of the examining board of the Pension Office in which he said he was entitled to an additional $20, or possibly $42 per month, on account of the hip wound, the necessity for assistance in dressing it being fully stated. This was followed with affidavits of members of his family and others showing that the wound had never ceased to run, and that it needed dressing and bandaging twice within every twenty-four hours, and that by reason of the loss of his arm, relator could not attend to it himself. This dressing was done by others for him. Upon this application and accompanying proof, a certificate was issued for an increased pension of $50 per month, commencing from March 21, 1884. This date of commencement was given because the Commissioner did not consider this a case of “ permanent specific disability,” under section 4698^, supra, and hence it could not date prior to the date of the examining surgeons’ certificate. Relator, acknowledging the receipt of the certificate for $150 per month, wrote to Commissioner Dudley, August 30, 1884, making a protest, as stated, to save any rights he might have for rehearing, on the ground that he was entitled to draw at that rate from the date of the act of 1874, or at least from the date of his last application, August, 1881, which had been denied by the same Commissioner.</p> <p>No further action appears to have been taken until May 6, 1889, when Commissioner Tanner rescinded the order of Commissioner Dudley, and issued a certificate to relator increasing his pension to $72 per month, and also giving him arrearages at the rate of $50 per month from June 4, 1874, to June 17f 1878, and at the rate of $72 per month from June 17, 1878, to May 6, 1889.</p> <p>On August 16, 1889, a further allowance was made of $25 per month from June 6, 1866, to June 4, 1872, and from thence to June 4, 1874, of $31.23 per month.</p> <p>It appears that Commissioner Lochren, the respondent herein, in 1893, undertook to reduce relator’s pension, but a mandanms was issued by Mr. Justice Bradley, of the Supreme Court of the District, who also rendered the judgment appealed from, compelling him to reinstate relator in his former rating. No appeal was taken from this because, as respondent says, of the provisions of the act of December 21, 1893, respecting notice in such cases. A bill for an injunction filed by relator against further action in his case by Commissioner Lochren was sustained by Mr. Justice Cox, of the same court, on the ground of the want of sufficient notice under said statute, but in his opinion the respondent’s construction of the law applying to the relator’s case was sustained.</p> <p>This act of December 21, 1893, is to be found in the general appropriation act and reads as follows :</p> <p>“ That any pension heretofore or that may hereafter be granted to any applicant therefor under any law of the United States authorizing the granting and payment of pensions on application made and adjudicated upon shall be deemed and held by all officers of the United States to be a vested right in the grantee to that extent that payment thereof shall not be withheld or suspended until, after due notice to the grantee of not less than thirty days, the Commissioner of Pensions, after hearing all the evidence, shall decide to annul, vacate, modify, or set aside the decision upon which such pension was granted. Such notice to grantee must contain a full and true statement of any charges or allegations upon which such decision granting such pension shall be sought to be in any manner disturbed or modified.”</p> <p>Afterwards, on March 16, 1894, the respondent, as Commissioner of Pensions, sent the following notice^ to relator:</p> <p>“You- are hereby notified that it appears from the evideuce in your case on file in this bureau that your pension of seventy-two dollars per month which you are now receiving is illegal, and that you never were and are not now entitled under the law to that rating, nor to any rating in excess of fifty dollars per month.</p> <p>“ It is hereby alleged that it appears by the evidence filed in your claim for pension and your various claims for increase of pension in this bureau that your injuries and disabilities never resulted in permanent and total helplessness, requiring the regular aid and attendance of another person, within the meaning of any of the statutes relating to pensions. It is further hereby alleged that in fact you never have been and are not now in such a state or condition of helplessness.</p> <p>“ It is further hereby alleged that you have been at all imes since before your present pension certificate was issued and are now in the daily and active personal performance of your official duties and avocations, and are in nowise hindered therefrom by or because of any of the injuries or disabilities for which you are pensioned.</p> <p>“ You are further notified that you may within thirty days after the day of the service of this notice upon you file in the Bureau of Pensions, at Washington, D. C., such further evidence in support of your right to pension at the rate you are now receiving or having a tendency to controvert any of said allegations as you may desire to present.</p> <p>“You are further advised that on the Monday next following the expiration of the said period of. thirty days after the service of this notice upon you, at 11 o’clock in the forenoon, at the room of the Commissioner of Pensions in the Pension Office building, at Washington aforesaid, the Commissioner of Pensions will consider the allegations and all the evidence on file or which may be presented relative to such allegations or to your claim or right to pension, and will at the same time hear you personally or by counsel and consider any argument which you may submit, and will thereupon proceed to determine the truth of such allegations and to take such final action in respect thereto and in respect to the fixing the rate of pension to which you may appear to be entitled, and to modify, change or affirm your present rating, as may seem conformable to law and the evidence so to be considered.”</p> <p>Relator seems to have taken no notice of this communication, and on May i, 1894, respondent sent him a certificate showing that he was entitled to a pension at $50 per month, “issued in lieu of certificate dated August 16, 1889, to correct rate,” and wrote him that the pension agent at Detroit would forward him properly prepared vouchers, &c., for the new rate. It was to vacate this order that relator’s petition was filed. There is no pretense that the relator has ever made any misrepresentation of the character and condition of his wounds.</p> <p>Commissioner Tanner, reversing the ruling of Commissioner Dudley, concluded that relator’s injuries resulted in “permanent, total helplessness, requiring the regular personal aid and attendance of another person ’ ’ under the act of June 18, 1874 (see same set out above), and that it was a case of “permanent specific disability” under section 4698^ R. S., which did not require the surgeon’s certificate, and hence could date back.</p> <p>Respondent claims that the fact of relator’s ability to discharge the onerous duties of his judicial position was not before Commissioner Tanner and that he acted solely upon the record before' Commissioner Dudley.</p> <p>Respondent, claiming the right to inquire into the case, and with this additional information, concluded that his case was not that of a “ permanent specific disability,” and that his injuries had not resulted in “total helplessness” in the sense of the act giving the pension of $72 per month therefor, and revoked the allowance of that sum for the future. The new certificate for $50 per month was issued under the act of July 14, 1892, which gave that sum to those shown to be “totally incapacitated for performing manual labor,” &c., &c., “and who are thereby disabled to such a degree as to require frequent and periodical, though not regular and constant, personal aid and attendance of another person.”</p> <p>The Secretary of the Interior, against whom the petition has been dismissed, made answer that no appeal had ever been taken to him in the relator’s case, and that he had no knowledge of the matter until after the first proceeding by mandamus ;■ and that supposing no appeal would ever be taken he has since formed and expressed opinions with respect to the merits of relator’s case.' (What these are is not stated). He then- proceeds to say that this failure to appeal renders the proceeding premature as to him, but that he “ presents the fact solely for the purpose of affecting his own connection with the proceeding and not for the purpose of affecting an immediate proceeding against the Commissioner, which, so far as it is affected by the failure of relator to file his appeal to the Secretary, is expressly waived.”</p>

Hearing of a petition for the allowance of an appeal. The petitioner, Mary C. Morris, filed her bill in the court below for an injunction to restrain the defendant, the Washington and Georgetown Railroad Company, from using explosives in the work of excavation being carried on upon the site of its proposed union passenger depot in Georgetown adjoining her premises, and which premises, as alleged, were being seriously damaged by the use of such ■explosives.

Hearing on an appeal by the plaintiff from a judgment on verdict directed by the court in an action for damages for death by alleged wrongful act. The Court,in its opinion stated the case as follows : This is a suit to recover damages from the appellee for the alleged unlawful killing of the appellant’s intestate.

<p>Hearing on an appeal by the plaintiff from a judgment on demurrer in an action to recover damages for death by alleged wrongful act.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal by the defendant from an order continuing a restraining order pendente lite in a suit for the specific enforcement of a contract and for an injunction.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an appeal from an interlocutory order of the Supreme Court of the District of Columbia, rendered in an equity suit pending in that court, whereby a restraining order, issued ex parte in the first instance, was continued to the final hearing of the cause.</p> <p>A bill of complaint was filed on April 22, 1895, by the appellee as complainant in the court below, in which it was sought to enjoin the appellant, which was the defendant in that court, from cutting off, as it had threatened to do, the electric current which the appellant had been supplying to the appellee for several years for illuminating purposes, in pursuance of a contract between them. It was stated in the bill that both the complainant and the defendant were corporate organizations, the former under the laws of the District of Columbia, for social purposes, the latter by virtue of the laws of the State of West Virginia, but located and doing business in the District of Columbia, which business consisted in the furnishing of illumination by electric power throughout the city of Washington. On January 16, 1888, the two organizations entered into a contract with each other, which was reduced to writing and is in the following terms:</p> <p>“ This contract entered into this 16th day of January, A. D. 1888, between the Metropolitan Club of the city o Washington, a corporation organized and existing under the laws of the District of Columbia and located in the city of Washington in said District, of the first part, and the United States Electric Lighting Company, a corporation existing under the laws of the State of West Virginia, and located and doing business in the city of Washington, District of Columbia, of the second part, witnesseth:</p> <p>“ That the said United States Electric Lighting Company agrees to furnish the building now occupied by said Metropolitan Club, situated on the southwest corner of 17th and H streets, N. W., in the city of Washington, with electric' current in quantity and quality sufficient to light the building with sixteen (16) candle-power incandescent electric lights in number not exceeding two hundred (200) at an annual charge of one thousand five hundred and twenty-one dollars and fifteen cents ($1,521.15) — the same being ten (io) per cent, more than the amount paid for gas by the said Metropolitan Club for the twelve months of the year 1887, said amount so paid by the said Metropolitan Club for the year 1887 being thirteen hundred and eighty-two dollars and eighty-six cents ($1,382.86).</p> <p>“ It is further agreed by and between the parties hereto that the annual charge hereinbefore agreed upon shall be paid to the said United States Electric Lighting Company by the said Metropolitan Club in equal monthly payments, said payments to be made upon the first day of each month next succeeding the month for which payment is made.</p> <p>“It is further stipulated and agreed that the wiring of said club building for the purpose of introducing said lights shall be done under the supervision of the said United States Electric Lighting Company and that before the electric current is supplied to said building as hereinbefore provided the said company shall signify in writing to the said Metropolitan Club that said wiring is complete and acceptable to said company. .</p> <p>“ It is further agreed by the said company that the said current shall be perpetual, and that the renewal of lamps and the repairs to conductors shall be at the expense of the said company, provided that the expense of renewing said (such) lamps as may be broken by servants or members of the said club shall not be charged to the said company.</p> <p>“It is also agreed by the said United States Electric Lighting Company, that in case the electric current should be cut off or fail from causes not chargeable to the said Metropolitan Club, the expense of gas or other illuminant employed by said club to make good the lack of electric light shall be borne by the said company and may be deducted from the hereinbefore provided for amount of the annual charge to be paid to said company.</p> <p>“ It is also agreed by the said United States Electric Lighting Company that should the said Metropolitan Club hereafter introduce into its building or any additions thereto on its grounds more incandescent electric lamps than the two hundred hereinbefore named, the said company will furnish electric current in quantity and quality sufficient to supply the said lamps, at a pro rata increased charge — it being understood that all charge shall be based upon the sixteen (16) candle power lamp as a standard.</p> <p>“ It is understood and agreed that this contract shall continue in force until terminated by the said Metropolitan Club, provided that the said club shall not terminate the same for at least one year from the date of execution hereof.</p> <p>“ It is also stipulated and agreed by the said United States Electric Lighting Company, that in event of its failure or inability to comply with the terms of this contract and of the annulment or termination for this cause of said contract by the said Metropolitan Club, the said company will reimburse the club for the expenses incurred by the said club in wiring and providing electric light appliances and fixtures for the club building.</p> <p>“ In testimony whereof the parties hereto have hereunto set their hands and seals the year and day above written.</p> <p>(Signed), “ United States Electric Lighting Co.,</p> <p>(Seal of Co.) “ By Sam’l Norment,</p> <p>“ President.</p> <p>(Signed), “The Metropolitan Club of the</p> <p>City of Washington,</p> <p>(Corporate Seal). “ By John A. Baker,</p> <p>“ Chairman of the Executive Committee."</p> <p>The bill of complaint proceeds to state that under this contract the electric lighting company supplied the necessary electric current to the club for more than seven years; that, in consequence of the system of business in the management of the club’s financial affairs, the monthly payments, into which the annual charges were divided, were not paid punctually on the first day of each month, as provided by the contract, but that such payment had never been exacted by the company, which received the payments without question whenever made ; and that all the monthly payments had in fact been made, except those for February and March of 1895, which, although tendered on April 16, 1895, the electric lighting company refused to receive, upon the ground that by the failure to pay promptly the contract had been forfeited.</p> <p>The bill further proceeds to state that the electric lighting company now threatens to cut off the electric current from the premises of the club and refuses any longer to supply those premises, unless the club consents to enter into some new contract more advantageous to the company. And it is alleged that, in view of the fact that the club has been at great expense in wiring its building and introducing therein the necessary appliances for lighting it with electricity, and of the further fact that only by electricity can the building be properly illuminated, and only from the company, which has a monopoly of the business, as it is claimed, can the necessary lighting power be procured, irreparable injury would accrue to the club, if the electric current were cut off</p> <p>And the prayer of the bill is, that the contract set forth should be decreed to be a valid subsisting contract, and to be specifically performed, and for an injunction to restrain the company from cutting off the electric current and from interfering in any way with the free and proper use of the current by the club.</p> <p>Upon the filing of the bill, a temporary restraining order was issued at the instance of the complainant; and on the same day an order was passed allowing the complainant to pay into the registry of the court the money in arrears from the complainant for the months of February and March, 1895, with interest thereon to that day, which payment was accordingly made on the same day.</p> <p>Seven days afterwards, on April 29, 1895, the electric lighting company filed its answer, with some supporting affidavits and exhibits. The substantial averments of the answer, so far as the present hearing is concerned, are that the company has not a monopoly of the business of supplying electric light in the city of Washington ; that many persons produce their own electricity for lighting purposes ; that the complainant could do so, or could use gas or some other means of illumination; that no irreparable injury would inure to the complainant if the defendant cut off the electric current, as threatened; that the contract in question must have been procured by some misrepresentation— for of the circumstances of the making of the contract the present officers of the company, who are different from those in office at the time of its execution, are stated to have no knowledge ; that the contract was never duly executed by the proper officers of the club; that it is a harsh, unjust, nnconscionable and one-sided contract, wanting in mutuality, inasmuch as by it the defendant was perpetually bound, while the complainant might terminate it at any time after the expiration of one year; that in consequence of it the defendant had been furnishing electric current to the complainant for several years at a cost and loss to the defendant of about three thousand dollars each year; that the complainant was improperly and extravagantly using the electric current in a manner and to an extent not contemplated at the time at which the contract was made; that the defendant had repeatedly protested against this, to it, unsatisfactory condition of affairs, and requested the complainant to come into some more just and reasonable arrangement ; that the defendant had never waived its right to prompt payment under the contract; and that it had notified the complainant in consequence of the default of the latter, that it would be compelled to cut off the electric current unless the complainant would enter into a new contract with reference to the same.</p> <p>Some correspondence between the parties or their attorneys is given in the exhibits filed with the answer; and the affidavits are to the effect that various hotels and places of business in the city of Washington were lighted with electricity not supplied by the defendant, but generated by the owners or managers of such houses and places of business.</p> <p>Upon the application of the complainant, and the consideration of the bill, answer and affidavits, the court below, on April 29, 1895, made an order continuing the restraining order until the final hearing of the cause; and from this order of April 29, 1895, the present appeal has been taken by the defendant, the electric lighting company.</p>

Hearing on an appeal by the plaintiff from a judgment sustaining a demurrer to a replication to a plea of the statute of limitations, in a proceeding b y sci.fa. on a judgment. The facts are sufficiently stated in the opinion.