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instructions. Neither in the oral charge nor in the requested instructions is any mention made of the question of, or amount of, damages, or the rules to be observed by the jury in determining the same.

Nowhere is it stated that these requests or instructions were the only instructions asked or acted upon by the court. It may well be that in some instruction given to the jury the judge gave the proper rule for damages, and carried out his suggestion that he would cure the matter as to the line of Mr. Hoke Smith's argument. Assuming, however, as may be the fact, that nothing further was said about it, on the showing made we are unable to say that the action of the court in relation to Mr. Smith's argument constitutes reversible error. Counsel for plaintiff in error relies upon the decision of this court in Railroad Co. v. Carroll, 28 C. C. A. 207, 84 Fed. 778, 781, et seq., in which case a very similar, though much more objectionable, argument was presented to the jury. The record in that case will show that the trial judge expressed no disapproval whatever of the argument used, nor undertook in any way to correct the effect of the same. In the opinion in that case the court said:

"We understand the general rule to be that the remarks of counsel to the jury on the merits, to constitute reversible error, must be objected to at the time, be unwarranted by the pleadings and evidence, have a tendency to mislead or prejudice the jury, and be, to more or less extent, approved by the trial judge.

In the instant case there is nothing to show whether or not the remarks complained of were warranted by the evidence, but the case does show that the remarks were more or less disapproved of by the trial judge, and, if there was error on the part of the trial judge, it was because he did not thereafter instruct the jury as to the proper weight to be given to the argument in question; and in this regard, as counsel for the defendant apparently made no further suggestions to the judge in relation thereto, nor asked any special instruction thereon, we are inclined to the opinion that the matter was considered of so little importance, in view of the main issues in the case, that it escaped the attention of both the judge and the counsel. The matter was not considered of sufficient importance to urge with other grounds in the motion for a new trial, and we are confident that, in view of the large verdict, both the counsel and the trial judge would have laid great stress on any matter of record appreciably tending to show prejudice on the part of the jury in the matter of damages.

The tenth and eleventh assignments of error complain of certain rulings on demurrers, but are not insisted upon,—at least, no argument is submitted in support of them. The twelfth assignment of error complains of the overruling of a motion for a new trial, and needs no notice.

This disposes of all the formal assignments of error, and practically disposes of the case; for, upon the real question presented, and which has been very elaborately and ably argued by counsel for plaintiff in error, we do not agree with his contention. The record shows that the plaintiff in error (defendant below) requested the court to charge the jury, among other things, the following propositions:

“It appearing that the usual and proper inspection was made of the car by competent inspectors, the action fails, and the jury will find for the defendant. Under the law, the railroad company was not the insurer or guarantor of the life or limb of the plaintiff. The only duty it owed to him was to use ordinary and reasonable care to guard him against danger, and, if the railroad company used such care in this case, the law is with the railroad company, the defendant, and the jury will so find; that is, a verdict, 'We, the jury, find for the defendant.' This suit is based on the charge that the defendant railroad company was guilty of negligence, and, unless the testimony shows that it was guilty of negligence in not discovering the absence of the nut, the jury will find for the defendant. The inspectors were not bound to the most careful or strictest inspection, but only to ordinary and reasonable care under the circumstances. It is the duty of the railroad company to exercise ordinary care in furnishing reasonably safe cars and other appliances, and also to exercise ordinary care in their inspection, so as not to unreasonably expose its employés to unknown and extraordinary hazards. A railroad company is not required to furnish cars or appliances that are absolutely safe, or to maintain them in that condition. The company is not an insurer of the safety of the employé against injury. The company is not liable for injuries caused by defects of which it had no knowledge, and of which it could not have known by the exercise of ordinary care. The company is only charged with knowledge of that which by the exercise of ordinary care it would have discovered. It is not required to resort to tests that are impracticable or oppressive and unreasonable, or which would be incompatible with the proper furtherance of business, and which are only required to insure absolute safety. If the duty of inspection has been performed with ordinary care, and the defect is found afterwards to exist, but is not discovered at the time, the master is not liable for an injury caused thereby, unless he had knowledge of such defect. The inspection which the company is required to make of cars from other roads is not merely a formal one, but should be made with ordinary care; that is, the inspection should be such as the time and place, means and opportunity, will permit."

The rule sought to be presented by these instructions and charges is that, while it is the duty of the railroad company to make proper inspection and look after the condition of cars that it calls upon it employés to use, when the railroad company has appointed proper and capable inspectors, and provided by its rules that these inspectors shall make due and proper inspection, and the inspectors have made inspection, then the duty of the railroad company is performed, and no negligence can be imputed to the company because the inspection has not been thorough and complete. In Railroad Co. v. Herbert, 116 U. S. 642, 652, 6 Sup. Ct. 590, 595, 29 L Ed. 755, 760, the court say:

"If no one was appointed by the company to look after the condition of the cars, and see that the machinery and appliances used to move and to stop them were kept in repair and in good working order, its liability for the injuries would not be the subject of contention. Its negligence in that case would have been in the highest degree culpable. If, however, one was appointed by it, charged with that duty, and the injuries resulted from his negligence in its performance, the company is liable. He was, so far as that duty is concerned, the representative of the company. His negligence was its negligence, and imposed a liability upon it, unless, as contended, it was relieved therefrom by the statute of Dakota."

Railroad Co. v. Herbert, supra, has been affirmed and followed by the supreme court in many cases. See Railroad Co. v. McDade, 135 V. S. 569, 10 Sup. Ct. 1044, 34 L. Ed. 235; Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Railroad Co. v. Hambly, 154 U. S. 357, 14 Sup. Ct. 983, 38 L. Ed. 1009.

In Railway Co. v. Barrett, 166 U. S. 617, 619, 17 Sup. Ct. 707, 708, 41 L. Ed. 1136, 1139, the following charge was indorsed:

"A railway company is bound to use ordinary care to furnish safe machinery and appliances for the use of its employés, and the neglect of its agents in that regard is its neglect. That it is not bound to insure the absolute safety thereof, nor to apply the best and safest and newest of such mechanical appliances, but is bound to use all reasonable care and prudence in providing machinery reasonably safe and suitable for use, and in keeping the same in repair. That, by "ordinary care” is meant such as a prudent man would use under the same circumstances. It must be measured by the character and risks of such business. And where such persons, whose duty it is to repair the appliances of the business, know, or ought to know, by the exercise of reasonable care, of the defects in the machinery, the company is responsible for their neglect.''

In Railroad Co. v. Mackey, 157 U. S. 72, 87, 15 Sup. Ct. 491, 496, 39 L. Ed. 624, 630, the court said:

"The corporation is not to be held as guarantying or warranting the absolute safety, under all circumstances, or the perfection in all its parts, of the machinery or apparatus which may be provided for the use of employés. Its duty in that respect to its employés is discharged when, but only when, its agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employés."

In Railway Co. v. Daniels, 152 U. S. 684, 689, 14 Sup. Ct. 756, 758, 38 L. Ed. 597, 601, after defining the risks assumed by a servant, the court said:

"But, within such limits, the master who provides the place, the tools, and the machinery owes a positive duty to his employé in respect thereto. That positive duty does not go to the extert of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety; and it matters not to the employé by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employé, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects."

See, also, Railroad Co. v. Baugh, 149 U. S. 388, 13 Sup. Ct. 94, 37 L. Ed. 772.

"It is the duty of the railroad company to use reasonable care to see that the cars employed on its road, both those which it owns and those which it receives from other roads, are in good order, and fit for the purposes for which they are intended; and this duty it owes to its employés as well as to the public." Railway Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188.

In the light of these decisions, we understand the law to be that, as to patent defects in machinery furnished by railroad companies for the employés to use, the railroad companies are insurers in all cases where the employé, by reason of his employment or the circumstances of the case, has no full opportunity, before using the machinery in question, to observe and note the patent defect; and the rule is the same with regard to all defects that can be discovered on proper examination and inspection.

In the present case the defendant in error was not called upon by his duty to make any particular inspection of the cars turned over to him after the regular inspection. As to the particular de fect which resulted in his injury, the proof is clear that although the defect was patent, and could and would have been readily noticed by any employé called ordinarily to use the same, the defendant was called upon to use it at night, in an emergency, and without opportunity to examine or inspect the same. It may be, as counsel for plaintiff in error argued, that he knew that the car had lately come in from another road; that after he reached the platform of the car he could, with the slightest movement of his hand, or instantaneous movement of his lantern, have discovered the condition of the brake (that is, the absence of the nut); and that upon that discovery he could have used the brake ("let if off") in such a way that he would not have been injured. But the trouble is, he had no opportunity to examine the condition of the brake with his hand, or by any movement of the lantern. In the line of his duty, he was climbing on top of the car as it was moving, and he reached for and caught the brake to support himself preparatory to using the same; and to say, under such circumstances, that he should have made a preliminary inspection, is contrary to both reason and authority. On the whole case,—and we have examined it with great care,—we are constrained to hold that the record shows no reversible error on the trial, and the judgment must be affirmed.

(100 Fed. 426.) SIMONSON v. SINSHEIMER et al.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1900.)


In the case of a petition in involuntary bankruptcy, alleging as an act of bankruptcy the making of a general assignment for creditors, where the defense set up by the debtor is that the petitioning creditors are estopped, by their conduct with reference to the assignment, to maintain a petition based thereon, he is not entitled to a trial by jury; and consequently an appeal from the order adjudging the defendant bankrupt may be treated as an appeal in equity would be treated, and the appellate

court may review the facts as well as the law of the case. 2. SAME-PETITIONING CREDITORS-ESTOPPEL.

Where a debtor made a general assignment for the benefit of his creditors, and the assignee qualified and brought a suit in the proper state court for the settlement of the trust under the direction of the court, and within four months thereafter certain creditors filed a petition in involuntary bankruptcy against the assignor, alleging such assignment as an act of bankruptcy, held, that they were not estopped to maintain such petition, on the ground of their having participated in the proceedings under the assignment, not having filed their claims, although they submitted to the assignee, at his request, unverified statements of their claims, for the purpose of enabling him to compare the same with the entries in the insol

vent's books. 3. SAME.

Nor are such creditors estopped from maintaining the petition because, having knowledge of the assignment and of the acts of the assignee thereunder, they delayed instituting proceedings in bankruptcy for about two months, where it appears that the petition was prepared soon after the assignment, and was withheld at the request of the defendant, and on the

representation that he was about to offer a composition to his creditors. 4. SAME.

Although an order made by the state court for the sale of the assignor's goods was submitted to the attorneys for the said creditors, and by them indorsed “Seen," this does not bind the creditors to participation or acquiescence in the proceedings in the state court, where it is shown that such indorsement was not made on their behalf, but in the interest of a member of the bankrupt’s firm, who desired, through those attorneys, to be in

formed of what was being done in the state court. 5. SAME.

Pending a proposition for compromise, the petitioning creditors sold to the assignee small bills of goods to replenish the stock and make it more salable, and received from him the price thereof. Held not such an act as would estop the creditors from impeaching the validity of the assignment by subsequent proceedings in bankruptcy against the assignor.

Appeal from the District Court of the United States for the District of Kentucky.

This is the second appeal of the appellant from the judgment of the district court at Louisville, adjudging the partnership of Simonson, Whiteson & Co., in which the appellant was a partner, to be bankrupts. The decision of this court on first appeal is reported in 37 C. C. A. 337, 95 Fed. 948. The petition in bankruptcy was filed on February 14, 1899, by three firms, who alleged that they were creditors of the defendant partnership, in the aggregate sum of $10,000. It averred that on the 5th day of December, 1898, the defendants, as partners, had committed an act of bankruptcy in making an assignment to one Comingor; that the firm was then insolvent; that Comingor had accepted the trust on the deed of assignment, and had duly qualified as such assignee, and entered upon his duties as such; that he had sold the stock belonging to the estate of the firm, and had in his hands, as the proceeds of the sale of such stock, about $70,000. Some days after the time within which the defendants were required to answer they tendered an answer to the petition. The district court declined to allow the answer to be filed, on the ground that it did not state a good defense. The appeal taken was from the refusal of the court to allow the answer to be filed. This court held that one of the defenses set up in the answer, if true, created an estoppel against the petitioning creditors from prosecuting their petition in bankruptcy. The defense was that the petitioners had been made parties to the judicial proceedings in the state circuit court taken to enforce the deed of the assignment for the benefit of creditors, had filed claims thereunder, had taken part in the administration of assets by seeking payment of their claims out of the same, and had requested a reference by the state court to pass upon the claims or accounts of the assignee and the questions of distribution. It was held by this court, reversing the district court, that these averments in the answer were such an affirmative recognition of the validity of the assignment and participation in its benefits as to estop the petitsoners from now seeking to set that assignment aside in bankruptcy. The cause was remanded to the district court for further proceedings not inconsistent with the opinion. The district court, pursuant to the mandate, allowed the answer to be filed; whereupon the petitioners presented an amended petition, to which an answer was filed. The amended petition averred that the petitioners had no knowledge whatever of any intention on the part of the defendants to execute a deed of assignment, or any knowledge that any deed of assignment had been executed, until several days after the assignment had been made; that they did not do any act tending to induce the making of the assignment; and that they never participated therein, or recognized the validity thereof. They averred that immediately after they learned of the making of the assignment they instructed counsel to prepare a petition in bankruptcy against said defendants; that such petition was prepared, and that the defendants were notified of the petitioners' purpose to file the same; that the petitioners were induced not to file it by the representations of the defendants that

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