(271 F.) AMERICAN RY. EXPRESS CO. v. CRABTREE. CRABTREE v. AMERICAN RY. EXPRESS CO. (Circuit Court of Appeals, Sixth Circuit. February 8, 1921.) Nos. 3407, 3436. 1. Negligence 23 (1)-Wheel held dangerous attraction to children, The jury could find it was negligent for an express company to leave on its.platform outside its warehouse a heavy wheel tilted against the wall in such a way that children could set it on edge and play therewith, so that the express company could be held liable for the death of a child occasioned by such play, though it would not be if the wheel had been tilted so far that it could have been straightened up only by an adult. 2. Appeal and error 930 (2), 1068 (1)—Erroneous submission of contribu tory negligence cured by verdict for plaintiff; presumed that jury followed instructions. Error, if any, in submitting the issue of contributory negligence, does not require a reversal, where the jury found for the plaintiff, though for only a small amount, since such verdict amounts to a finding against contributory negligence, and the court will not assume that the jury disobeyed instructions by compromising on the amount of the verdict because of that issue. 3. Death 98 $1,000 for death of eight year old girl not so inadequate that an appellate court may set aside. Under Ky. St. § 6, authorizing the recovery of damages suffered by the estate of the deceased, the Circuit Court of Appeals cannot, in view of the contingencies which affect the future life of an eight year old girl, so as to determine the pecuniary value of her life to her estate, set aside as too small a verdict for $1,000. In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Action by John P. Crabtree against the American Railway Express Company. Judgment for plaintiff, and both parties bring error. Affirmed on each writ of error. Edward C. O'Rear, of Frankfort, Ky. (Overton S. Hogan, of Frankfort, Ky., and A. T. Stewart, of Stanton, Ky., of counsel), for plaintiff. John D. Atkinson, of Stanton, Ky., for defendant. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. DENISON, Circuit Judge. The Express Company maintained an office at a small station in Kentucky, and its agent received from the railroad, consigned to an oil company in the vicinity, an iron wheel 42 inches in diameter, and with a rim 10 inches wide, and weighing about 200 pounds. The Express Company's agent, instead of putting this in the warehouse until it should be called for, left it standing on the cinder platform, tilted over against the loading platform. The children of the town were in the habit of playing about the station building and grounds. On Sunday afternoon two boys tilted the wheel back to its upright position and rolled it up and down For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the cinder platform. After they had tired of this, and had left it standing on the rim at some distance from its original position, two little girls came along and probably undertook to roll it. It fell over upon and killed the youngest one, eight years old. Her administrator, who was also the father, brought this action under the Kentucky statute and recovered a judgment for $1,000 damages. The defendant brings error, claiming that there was no evidence of negligence, and the plaintiff brings error, urging that contributory negligence was improperly made an issue in the trial, and that, if the plaintiff is entitled to recover, the law requires a larger verdict. [1] We think there was substantial evidence tending to show negligence by defendant, and no complaint is made of the manner in which this issue was submitted to the jury, if it could be submitted at all. There was a place where the wheel could have been stored, and where it would have been entirely safe. If it had been left standing on edge, it would be clear that it had taken the character of an attractive nuisance." The event proves that it was not tilted over so far, but that it could be easily restored to its dangerous position, and this by the efforts of children, whose natural and ordinary conduct in respect thereto defendant was bound to anticipate. If it had been laid down in a horizontal position, or leaned over far enough so that it would have been beyond the power of boys to set it upright, there would be a different question. In these respects the jury had a right to conclude that the case differed from Kasey's Adm'r v. Railway Co. (Ky.) 124 S. W. 380, the decision chiefly relied on by defendants. The facts are very similar, but the wheel in that case either was tilted over enough further or was enough heavier so that to restore it to upright position furnished a matching test of strength between two strong men, and the defendant was not bound to anticipate an interference by adults. The principles which justify submission to the jury are illustrated by Railroad v. Stout, 84 U. S. (17 Wall.) 657, 662, 21 L. Ed. 745; Union Pac. Co. v. McDonald, 152 U. S. 262, 275, 14 Sup. Ct. 619, 38 L. Ed. 434; Escanaba Co. v. O'Donnell (C. C. A. 6) 212 Fed. 648, 129 C. C. A. 184, and cases cited 212 Fed. 650, 129 C. C. A. 186. [2] The trial judge submitted the issue of negligence by the child and by her parents. It is said that it was error, because there was no evidence of this as to the parents, and because a child of that age is not chargeable with her own carelessness. We cannot see that either of these questions is open. The jury found for the plaintiff, and, since contributory negligence in this action would be a bar, this verdict amounts to a finding that there was none. While conceding this inference to be technically correct, counsel urge that the error was prejudicial, because the courts ought to notice the fact, which it is said all experienced persons know, that where contributory negligence is an issue it makes the basis for a compromise among the jury and practically operates to reduce the verdict. To assume this is to assume that the jury disobeyed instructions; and we are not at liberty to draw any such inference. If there is an existing evil in this respect, the remedy is legislative. (271 F.) [3] The Kentucky statute (Ky. St. § 6) contemplates recovery of the damages suffered by "the estate of the deceased." The Kentucky courts have not worked out any definite rule of damages under the statute, where the deceased is a small child. The contingencies which affect the future life of a little girl eight years old, so as to determine the pecuniary value of her life to her estate, are beyond definite measurement. In a vast number of cases it turns out that the net pecuniary value of the life is very small, and we cannot safely say that a verdict of only $1,000 necessarily implies perversity on the part of the jury. The District Judge denied a motion for new trial on. this ground, among others, and thereby expressed his conclusion that there was nothing in the peculiar facts of this case indicating passion or prejudice. In some states a measure has been fixed by law as the value of the life of a child, but Kentucky has seen fit to leave the decision to a jury without definite guide, and we think we cannot set aside such a verdict as this upon the sole ground that it is too small. On each writ of error, the judgment is affirmed. COGSWELL et al. v. DRENNEN. (Circuit Court of Appeals, Fifth Circuit. February 1, 1921.) No. 3593. 1. Appeal and error 1097 (1)-Questions decided not re-examined on subsequent appeal. Questions which have been decided on first appeal will not be re-examined on a subsequent appeal of the same suit. 2. Appeal and error 1099 (7)-Former decision that evidence was sufficient to sustain recovery followed. Where, on former appeal, a decree dismissing the bill was reversed, because there was evidence which, if believed by the District Judge was sufficient to sustain recovery, and District Judge at second trial, at which the evidence was substantially the same, rendered decree for complainants, thereby indicating that he believed such evidence, the sufficiency of the evidence will not be re-examined on a subsequent appeal. Walker, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge. Suit by Felix M. Drennen, as receiver for the American Mortgage & Loan Company, against Sumter Cogswell and others. From a decree for complainant, defendants appeal. Affirmed. See, also, 252 Fed. 776, 164 C. C. A. 616. E. H. Cabaniss, of Birmingham, Ala., Forney Johnston, of Wash ington, D. C., and W. R. C. Cocke, John S. Stone, and Griffin Lamkin all of Birmingham, Ala., for appellants. J. L. Drennen, of Birmingham, Ala., for appellee. Before WALKER, BRYAN, and KING, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 271 F.-19 BRYAN, Circuit Judge. This suit was brought by appellee as receiver of the American Mortgage & Loan Company (herein called the American Company) against the Southern States Fire Insurance Company (herein called the Insurance Company) and seven of its stockholders, and is based upon a fraudulent conspiracy by the individual appellants to sell the stock of the Insurance Company to the American Company at an excessive price, as a result of which the American Company lost practically all of its assets. The bill seeks to recover the amount of such loss. Evidence was taken, and upon final hearing the District Court dismissed the bill, upon the ground that the evidence, taken most favorably to appellee, disclosed no right to the relief sought. On appeal, this court held that the evidence, if believed by the District Judge to be true, was sufficient to sustain the averments of the bill. The case was therefore reversed and remanded. Drennen v. Southern States Fire Insurance Co. et al., 252 Fed. 776, 164 C. C. A. 616. After receipt of the mandate of this court, and upon a further hearing, the District Court entered a decree in favor of appellee against the individual appellants jointly for the amount found to represent the difference between the book value of the stock and the price at which it was sold by them to the American Company, and from that decree the individual appellants have taken the present appeal. February 2, 1914, appellants, while all of them were stockholders, and six of the seven of them were directors, of the Insurance Company, sold 4,647 shares of its capital stock, each of them owning a part of it, of the par value of $5 each, to the American Company at $10 per share. Three of the appellants who were directors of the Insurance Company were also at the same time directors of the American Company. The American Company, not having funds to purchase this stock, borrowed a portion of the purchase price from a bank of which Enslen, one of the appellants and a director in both the Insurance Company and the American Company, was president, and executed its notes to the individual appellants for the balance of the purchase price. The money borrowed from the bank and the notes to the individual appellants were finally paid off with money borrowed by the American Company from the Insurance Company, secured by the stock purchased in the first instance from appellants by the American Company. The theory of appellee is that appellants were making fraudulent use of the American Company for their own profit, benefit and advantage, and that they palmed off on the American Company their stock at about twice its value, and in doing so depleted the assets of that company to the extent of the difference between the real value and the fictitious value of the stock, which difference appellants received and divided up among themselves in proportion to their individual holdings of said stock. The averments of the bill and the evidence in support of it are set forth in much detail in the opinions of this court on the former appeal. [1] The case is here upon practically the same evidence as before. It is not seriously contended that the additional testimony taken after the case was remanded is of such character as to overcome the (271 F.) evidence which has already been held sufficient to constitute a fraudulent conspiracy. There was no substantial additional evidence. This appeal is at last but an effort to secure a rehearing of the case upon practically the same record. It is well settled that questions which have been decided on one appeal will not be re-examined on a subsequent appeal of the same suit. Supervisors v. Kennicott, 94 U. S. 498, 24 L. Ed. 260; United States v. Camou, 184 U. S. 572, 22 Sup. Ct. 505, 46 L. Ed. 694; Souer v. De Bary, 105 Fed. 293, 44 C. C. A. 484. [2] Appellants recognize this well-established rule, but seek to avoid its application. It is argued that what was held by the majority of this court on the former appeal should not be taken as the expression of an opinion upon the merits. It may very well be, if the District Judge had found for appellants upon the evidence, that a decree dismissing the bill would not have been reversed. Yet the fact remains, and must not be lost sight of, that a majority of this court held on the former appeal that the evidence, if believed by the District Judge to be true, was sufficient to prove the conspiracy charged. That the District Judge did believe such evidence to be true, we are bound by the decree to assume. The decree is affirmed. WALKER, Circuit Judge, dissents. DEGNAN v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 2, 1921.) No. 40. 1. Criminal law 1159 (2)—Weight of evidence cannot be reviewed. On writ of error in a criminal cause, or in an action at common law, it is beyond the power of the appellate court of the United States to review the weight of the evidence. 2. Criminal law injustice. 1129 (1) —Unassigned error reviewed only to prevent plain The power of the court to notice plain error not assigned in criminal cases is not to be exercised as a matter of right, but is used only to prevent plain injustice. 3. Criminal law 508 (3), 1137 (5)-Defense by blaming others not subject to objections as accomplice testimony. In a prosecution for receiving goods stolen from a railway car, where each of the three defendants took the stand and attempted to show the guilt of the others, no defendant can complain that the aggregate of their efforts benefited only the prosecutor, and their testimony was not open to the objection usually made to that of accomplices. 4. Criminal law 370, 371 (2)-Receipt of other stolen goods admissible to show intent and knowledge. In a prosecution for receiving goods shipped in interstate commerce which had been stolen from a railway car, evidence that accused had been concerned in handling for profit other shoes proved to have been also stolen from cars at the same place and about the same time was competent for the purpose of showing intent and guilty knowledge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |