4,48
FEDERAL REPORTER,
vol. 45.
paid by 'a surety without demand, (Ilsley v. Jewett, 2 Meto. ,Mass., 168.) Being compelled to pay money for the defendant was the same, in effect, as having it detained by him, for which interest is .recoverable. Ekins v·.East India 00., IP. Wms. 395; Wood v. Robbins, 11 Mass. 504. Upon these principles, interest appears to be chargeable upon the respective amounts paid for the defendant from the time of The orator Allen has died, and the suit has not been revived in favor of his personal, representatives. The defendant has died, and the suit has been revived against his executors. The amount to be paid by the executors to each orator is capable of computation from the pleadings and evidence. To the orator Lionberger it is $77.33; to the orator J ackson, $67.11; to the orator Knapp, $66.54; and to the orator Greeley, $19.83. As the payments of the orators were several, except that by the two Knapps, who were partners, the claims of those who have died have not survived to the others; and, as the amount recovered is less than $500, costs to the orators are expressly prohibited. Rev. St. U. S. § 968. Let a decree be entered that the defendant's executors forthwith pay to the orator Lionberger, $77.33; to the orator $67.11 j to the orator Knapp, $66.54; and to the orator Greeley, $19.83, without costs.
CRAIG
v.
MOUNT CARBON CO.,
Limited.
(C1!rquit Oourt, D. West Virginw"
December 8, 1890.)
1.
RAILROAD COMPANIES-NEGLIGENOE-INJURIES TO TRESPASSER ON TRAOK.
A person riding on a railroad velocipede over and on the track of a railroad comnany, without having obtained its consent for that purpose, is a trespasser, and, in the event of injury resulting therefrom, no action can be m·aintained against the company. unless willful negligence on its part, whioh could have been avoided, is proven.
2.
SAME-'-LIOBNSB TO USE TRAOK.
No action can be maintained in such case where permission was asked for and given bYllaid company to so use their track at the plaintiff's own risk, unless the defeIidant was guilty of willful negligence.
&.
on the part of the company to such use of their track gives no right, but In such case the person so using i':J a trespasser, and no action can be maintained, unless the defendant was guilty of willful negligence. (SyZlabuB by the Cowrt.)
SAME.
At Law. This is an action to recover damages for the death of plaintiff's band, alleged to have been caused by the negligence of the defendant company. On the trial of the case evidence was introduced on the part of the plaintiff tending to prove that the is the owner of coal mines in Fayette county, W. Va.; that said mines nre located on Armstrong creek, about five miles from where said creek empties into Kanawhariverj that for the purpose of transporting coal to said river, and to the Chesapeake & Ohio Railway, defendant had built a railroad pass-
CRAIG 11.
CARBON 00.
4:49
ing up said creek from said river to the coal mines of defendant; that along the line of said road it was thickly settled, and, the county road being in the creek much of the way, pedestrians frequently walked on the railroad track; that said railroad was a steep grade, and near the upper end of same defendant had made a safety switch or cut-off; that at the time of the killing of the decedent, 0., the said switch was closed, and the engines and cars of the company were above the same; that when said switch was open, if any car or engine got away from those having it in charge, it was thrown off or derailed, and could not go down said railroad track; that at the time of the killing aforesaid It loaded box-car, the property of the Newport News & Mississippi Valley Railroad Company, then in the custody of defendant,was standing on the track above said safety switch; that said car had but one brake; that the chain attached to said brake had a defective link, apparent on inspection by one competent for the purpose; that decedent was a miner in the employ of defendant, but had nothing to do with operating defendant's railroad; that about the last of November, 1888, decedent and one V., his law, bought .a railroad velocipede, on which they rode every morning, when the track was not wet or frozen, from their home, about two miles below the mines where they worked, to the mines of defendant at upper end of the track, where they would take said velocipede off the track, . near office of defendant, lock it, and leave it until evening, when they would put the velocipede again on the track, and ride back to their homes; that this was done continuously, morning and night, for about a month before the accident; that on the evening of the 15th of Janu" ary, 1889, when it was nearly dark, and the engines and cars of ant were at the upper end of the railroad, and above the safety switch, they put the velocipede on the track, and started down the same; that just after they started servants of defendant attempted to shift said boxcar lower down the track from where it stood; that one Z., a brakeman in the employment ofihe defendant company, as such, was at the brake of said car; that it started, and, its speed becoming too much ated, he attempted to stop it by turning the brake; that thereupon, by reason of said defective chain, it broke, leaving him powerless to age the car; that, being thus powerless, he jumped off; that the safety switch was closed, and the car ran down the main track past the switch with accelerated speed; that, near the home of the decedent it had reached the great.speed of about 80 miles an hour, and ran over said velocipede, killing both decedent and his son-in-law, V., who were thereon; that this use of the track had been made openly, said velocipede being taken off below defendant's office, and in defendant's yard, but not in sight of the general manager of defendant, unless he was in that neighborhood; no obje!Jtion was ever made by said general manager, in charge of defendant's works, nor by any officer of said company, to said decedent so riding on .said track, so far as witnesses knew, during the time of so using. Evidence was introduced .bydefendant tending to prove that the safety switch was placed there to protect the property of. the company alone, v.45F.no.7-29
4:50
QP?RTER,. vol.
4p·.
andJ was left open only when, th$iengine of tQ6:c9mpany was below th.e· switch;. that if a car was derailed on:tQa switch,\t wrecked the carj that the detectin the chain was not apparent.oFlinspeptjon; that the parties who ,il'st brought the velocipede to the raUro.ad al;lked permission to so use:saidveloeipede Ollsaid road.of the general manager, who refused said but said. they might use itat-their. own risk, and that it wasdangerousj that they did use it for a tiQle, and i)old it to one S., and told him that the general ml1nager had refused them permission to run it, except at their own risk; that said S., while negotiating for the purchase, and before completing same, asked likepermiS&ion of tbe general manager., which was refu8ed in like manner, except at sahl S, 's own risk; that S. sold said velocipede to saidO. and V. in November or Decem" ber, 1888, and told tbem at tbetirne they purchased that tbe general manager bad refused permission to him to run it except at bis own risk; tbatsome time after C. and V. purchased the veloGipede, and while running the same on sairltrack, as aforesaid, they tolddifferentperspnsthat they. had· 110 permis$ion from the general manager to do i)O, and told one witness, G., that they were running it at their own riskj that, on the eveningJhe accident occurred, they narrowly escaped being run over by the engine of defendant company after they had gotten on their velocipede to run down home, and were then warned by said G." an engineer in defendant company's employ, against the danger Ot 130 using same, and again said they were so using it at their own risk; that before they purchased said velocipede it WitS left by its former owners at different parts about defendant's property,and at the same place where C. and V, left it; thatit Was used by said C. andY. early in the morning and late in the evening,and that the general mlluager ,of the defendant company did not know they had bought the velocipede, or were using it, until after their death; that th.e heaviest grade on said defendant's railroad was at the upper end,and W&9 1 95-100 of ,a foot in 100 feet; that .said box-car was brought by the Chesapeake & Ohio Railway Co., loaded. with corn for·defendant company, and was received by defendant company, and taken to the mines, a day or two before the accident; that it became necessary .toremove it from the place wheJ'e it had been standing, in order to ,enable the defendant's locomotive to go into the enginehouse for the night, and after the car was moved to another track, and while the brakeman was trying to stop it on tbe other track, the brake Cfhain broke, and the brakeman then could not stop the car. The plaintiff then introduced evidence tending ,to contradict the witness G. Plaintiff asked the co\l:rt to instr,uct the jury as fpl1ows: "( 1) The court instrul:!ts the jury that' if they believe from the evidence that the direct cause of the death of the Charles. Craig, was due to in t1)e absence of contributory they must .find fqr the plain,tiff, eveIl may believe the defendant ",as a trespasser,arid unlawfully upon the defendant's tracl).. , ... . ." (2) The cou'rtinstrlicts'the jury that if they believe ftom the evidence tbltt the direct cause of the decedent, Craig's, death was the of the de. fendant ot Its servants, In the absence:of'contriblltory.negligence on his part, find for the plaintiff, though they mayful't\ler bellevetbattbe
451 sltiddeeedent had agreed to perfuisslbrt 'of the defendant to 11'1e'the velocipede on its track at 'own risk. ' "'(3)" The court instructs the that iithey bel,ieve from the evidence that the decedent, Craig, came to his death byrell.llon of. ttle negligeme of. the defendant or its servants while he ,was riding on the raUro,ad velodppde on tile defendant's railroad track, and was so riding with the knowledge and acquithe plaintiff. escence of the defendant. they must find "(4) The court instructs the jury that if 'they find from the evidence that the decedent, Craig, came to his death by reason of the n'egligence of the fendant or its set'vants while he was riding ona railroad velocipede on the dfifelll;}ilnt'sfaih:olUl track, and,was saridj111lon said velocipede by the permis; sion of the said defendant, then theymus,ttiud forth,e plaintiff; and the court further insttacts' the jury ,that if they fiilu from the evidence that the decedent had, for a tong time next before his death, been in the habit of using saief velocipede 011 said defendant's said track, with the knowlPdge of said defendant, and without protest or objectIOn of said defendant, they may inferslich permission. "(5) The court further instructs thejl1ry that if they believe from the evidence that a railroad car was in the custody of, and was being used by, defendant on its railroad, and by reason of a defective hrake, the dpfect of which was apparent on inspectio'rt, broke away from the control ofthedefeiIdant or its servants, and ran down the railroad track, and over the decedent, and killed him, the said defendant was guilty of npgligence; and it is immaterial it owned by the Newwhether the defpndant owned said car, or port News &; Mississippi Valley Railroad Company. "(6) The comt further instructs the jury that, inantlction against a defendant for damages, and the defendant relies for his defense on contributory negligence in the plaintiff, the blirden of prov'ing such contributory negligence . is on thedefendallt. ' "(7) The court further instructs the jury that if they believe from the .evidence that the decedenL, Charles Craig, was killed by reason of the negligence of the defendant, and that such negligence of the defl'ndant was the direct and proximate cause of the death of the decedfint, and that decedent would not have been killed but for said negligence of the defendant. they must find for the plaintiff, although they may believe that the said decedent was himself guilty of negligence by being on the railroad track of defendant when he was so killed."
Okey Johnson, J. F. Brown, and B. W. ,Moore, for plaintiff. Knight & (Jouch, for defendan,t. .. Said instructions were objected to by the defendant, and refused by the court. Thereupon the court, in lieu of such instructions, so asked by the plaintiff, gave to thejury the following: JACKSON, J., (charging jury, after 8tating th:efacts a8 abm:e,) 1. If the jury finds from the evidence that the plaintiff's intestate at the time of his death was riding on a railroad veldcipede over and on the track of the defendanl company without first obtained its eonsent for that· purpose, then, under such a state offacts, he was a trespasser, and the plaintiff cannot maintain this action', unless they further from the evidence that there was willful negligence on the part of the defpudari:t'cdmpany, which could have been avoided, in which event he could. ... ,
452
Jl'EDDAL REl'ORTER,
·2. If jury find from. the evidence that the plaintiff's intestate ap-. plied to the general manager of the company for permission to use its road for the purpose of running his velocipede on it, and obtained from the general manager the right to use it at his own risk, then plaintiff cannot maintain this action, unless the defendant was guilty of willful negiigence. . . S.If the jury find from the evidence ,that the plaintiff's intestate had {or a month been in the habit of running his velocipede on defendant's road without objection on its part, the mere acquiesence on the part of the company did not give him. the right to use the road for such purpose, but in such case he was a trespasser, and could not maintain this action unless the defendant was guilty of willful negligence. Verdict for defendant.
BIDSTRUP tI. THOMPSON, (MUTUAL NATIONAL BANK OF NEW ORLEANS,
Intervenor.) (Cf.rcw£t;Court. E. D. Lou1.riana. February, 1891.) PLEDGE-CORPORATE STOOK.
Defendant, being the owner.of shareB of corporate stock, deposited the certificate with a trustee under anagreemen.t with the other shareholders that the stock should not be taken out of his possession, or put on the market before a certain time, and took a receipt from the trustee reciting such facts. Afterwards he delivered the receipt to intervenor, with a power of attorney in blank, authorizing the transfer of the shares on the company's books; but he gave the intervenor no order for the delivery of the Cjlrtificate, and no notice. was given to the trustee of the transfer. Held, under Civil Code La. art. 8158, prOViding that "when a debt.or wishes to pawn .* * * stocks . * he shall deliver to the creditors the * * * certificates of stock * * * so pawned, " that there was no pledge of the shares as against an execution creditor of defendant.
At Law. Semmes
for plaintiff.
Mr. Parkerso'll"for defendant.
Singleton, Browne & Choate, for interrenor.
.BILLINGS, J. The matter to be decided is as to the claim of the intervenor as a pledgee of 60 shares in a:corporation known as the "Electric Traction & ManUfacturing Company." The facts upon which this claim is to be decided are the following: On January 9, 1890, the defendant, Philip Thompson, was the owner of the above-described 60 shares of stock. By an agreement entered into between him and the other shareholders the certificate for the said 60 shares which had been issued to the defen<iant in his name was, along with the for the stock of the other shareholders, deposited with W. J. Behan sa trustee; the effect of, :which agreement among the shareholders was that the stock, the of which.bad been sO deposited with Mr. Behan, should not be taken out of his possession or put on the market until after Janu·