THE
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111
The libelant contradicts M,r. Smithflatly, by: saying thatne knew' nothing of the destruction of the paiper.'until told of it, when he desired to see it qr have a. copy. It seems plain that Mr. Smith is mistaken. ,; which tends to support this branch There is nothing else,as bEifbre of the defense. The respondent 'rl.ltty have suppbsed at the time, that the second' charter was to take tl1epJace of the first, as his testimony indicates',but th"'reis nothing which tends to show that the libelant agreed that it should, or that he'did not expect to hold the respondent to his (;ontracKThe circumstance that Pettit & Co. paid a small sum in addition to the amouilt which the second charter nanied as freight, to induce on the the libelant to take this: cargo, does'not seem to have question" Therespondeht was interested in procuring a cargo for the 'Vessel find' bad an inducement io make the sacrifice involved in this payment;-independently of a settletnentwith the libelant. The of thiscitrgo necessarily reduced' the damages which might result from the procurement his failure to comply witnhis contract; of this charter entitled hisfitm tocommissiol16 several times greater than the SUrti paid. . I wilhibt considertheqnestionofdamages.1t is possible noneW'ere sustained. If the second t cl1arterwasas valuable as the first, so that the libelllIitiD'iade as much' under it as be would have made under, the first, and suffered no'detentlon,he cannot oomplain. I will submit this q,uestion to:a:/ilommissioner, t(i£: the do, 'not agree· respecting' it,) ·and willbilSe the decree <>D hisl'eportj after it has been approved. .' ,-. . I, '," ., . ' . · "
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THE MAHARA.JAH.
ENNIS:V. TH£ MAHARAJAH tfal. ';,
lC,rcuft Court of Appeals, 'Secon!l Circmtt. Deceniber 14, 1891. '
in the employ llstevedqre inl.ol!-ding,a c!'rgo, was ,asslg,?ed to worl{!io'winch belong-mgtothe ship. In,'so domg, hIS hand slIpped from tbe handle of the. crank-bar of the which, and wa,s 'iJaugl;lt an4 orUS!led intbe cogs. 'l:pe winch was of an old pattA;lrn,witb.,unguarded cogs' but a person using it could prOtect hImself from such an InjUry as occurred to libelant by a'simple expedient', which libelant neg-Iected. Libelant was aware of the dangers of tbe winch, but used it without complaint for several bours. Held, that be was not entitled to recover damages from the steam-ship for the injury received.
FOR PnSOl'l'AL 1N1UBt:E$. .,..
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Appeal from the Circnit Conrt of the United States for the Southern District of New York. In Admiralty. Libel by George Ennis against the steam-ship Maharajah for personal injuries. Libel dismissed. See 40 Fed. Rep. 784. Affirmed 011 appeal to the circuit court. Libelant appeals. Affirmeu. Robert D. Benedict, for appellant.
112
FEDERAL. REPORTER,
vol. 49.
Wilhelmm MyndersB, for appellees. Before WALLACE and Lo\.COMBE, Circuit Judges. WALLACE, Circuit Judge. While the libelant was a winch befrom the handle of the cranklonging to the steam-ship, barjand Was caught and crus4ed in the cogs, whereby he sustained serious .injury. He was in the employ of a stevedore who was engaged in loading the ship with cargo, and had been assigned by him to work the winch. He imputes his injuries to the negligence of the steam-ship, upon tbe theory that the winch was unsafe because the handle came dangerously near the cogs.in operating the crank-bar, and the cogs were not covered by a guard, and also because the handle was slippery from grease and steam that escape(,1 from defective parts of the machine. The proofs are that the winch was, in details of structure, substantially like those in-general use at the time it was built, had been used on the steamshipJor a dozen years or :more, and waanot materially out of repair; that sueh winches are stUUJil common use upon vessels, but an improved machine has been also introduced, constructed with a guard over the COgBj',and that the handle was llotexceptionally slippery on the day of the accident. It tUSO that the libelant was familiar with winches, havingdopetta.ted them:1or 12 years; and that he. hf!.dbeen operat,... inglthia :ooe nearly all day the accident. took pla.ce,and had not made any. complaint about it. Manifestly the libelant Ulldl'lrtook to use his a machine. which he knew due care. Owing to a momentary relaxation of proper caution, he met with such an accident as he could have foreseen. His own conduct affords the best evidence thafthe machine was not exceptionally unsafe, inherently or casually. If it had been, he would not have used it withof.danger incident to its use were patout objection. All the ent to him after he had used it a few minutes; yet he used it several hours, and, until he':Wll,Il, hur,t, without a complaint, or attempting to protect himself by the'shnpfe expedient adopted after the accident by the witness Smith. He has no just ground of complaint against the steamship. One who voluntarily. undertakes to perform a service for another impliedJy cons.ents to assume the known risks incident to· it, and cannot impute to the other aoy breach of duty or. negligence founded solely upon the presence of such risks. The decree is affirmed. As the libelant sues inf()7"fTl,a pauperi8, the affirmance is without cost,s.
PACIFIC'F,(lSTAL TEL. CABLlj: CO. V. IRVINE.
113
PACIFIC POSTAL TEL. CABLE CO. 11. IRVINE (Oircutt Oourt, S. D. CaZlfornf.a.
et al.
January 19,1892.)
1.' JI1llISDICTION-DIV1IRllB CITIZENSHIP-PLBADING. An allegation that plaintiff is a New York corporation, and that defendants are "residents" of Californill, does not show diverse citizenship. 9.TELBGRAPH COMPANIES-USE OF HIGHWAY.
The use of a public highway by a tele.gr.aph. line erecting poles and wires thereon is an additional burden, and where the fee is. in the adjacent owner cannot be taken without his consent, or by statutory proceedings, in which he is entitled t.ocom·pensation.
InEquity. Motion for an injunction. George Hayford,for complainant. , Wilson & Lam'T/Ul, for defendants. Ross, District Judge. There are two very substantial reaSODS why the nl()ti9p:fpraD injUnction p,erein be granted: 1. Neither the original nor the amended bill shows diverse citizenUpciP, which ground" alone the jurisdiction of this eoul'tis,,jnvokedbythecomplainant. In the amended bill it is alleged that t'hecomplainant is a. New York corporation, amtthat thA defendants are residents of the state of California. But a person, may be a resident sta,teo! is nota citizen. T1;1ere are many residents of nQtcitizens of any state ,of the U1).ion. '2.' The'papers"submitted upon the motion show that tbe telegraph poles and wires in qttestion were erected by complainant upon land, the feeofi'lWhich islin:the defendant James.Irvine, and over whioh the right of way for a public road had been theretofore to the of ·supervisorsoi the countyin which the land is situate. It appears that the 'poles and wire& were erected by complainant under a grant from the 'board of supervisors so to do, but without the consent and against the protest of the defendants. The right of way granted to the supervisors was for a public road, that is to say, a.,:way to be used by the public for ordinary travel. Where the fee of the highway is vested in the public, thereean 'be no valid legal "objection to the grant by the public of a right to erect such poles and wires without regard to the adjacent property remains in the adjaholders; but where, as here, the fee of the cent' owner, and only' its use for purposes of public travel has been granted; I think it clear that every use of the highway not in the line of sucn travel is an additional burden, for which the proprietor of the fee iselltitled to additional compensation, and which cannot be constitutionally taken from him'without his consent, except by proceedings regularly instituted aud proSecuted according to law. Mbtion denied: . .
I'EDERAL ltEPOR'1'ER,
.01. 49."
CC'irm#t Court Q/ L RlJJJlOAD
Eighth
J:anuary 25, 18l1S.)
occupied a land in the Indian TerritoryfrontingGlltbe Arkansas river, opPosite the 'citY' of 'Ft: Smt'tl1; and were el,lgagM in' operating a ferry at that point, uDdera'license granted theIll by the 'Cherokee Nation. The K. &. A. Ry. Co., in 1888, oondemned a right,or way through said: tract of land to the 'river. 'under Aot Congo .rune I, 1886, which authorizeu it to build a ranroadthrougb ,'< Territory, and to condemn land to be used forrwLlway. telegraph, and ,. telej)1OOtie purposes O'llly"" On MarohlS, 1890, oongress authorized tbe railway com· pany to build a bridge across the Arkansas river, to be used as a railway, passenger, and wagon bridge. The last act reoited that the building of the railway, as authorized by the act of June 1,1886, involved the necessity, of constructing the bridge. Held: (1) That, by theacllilf' Mit.roh 11),1890, ooligress impliedly authorIzed the railway company to use its ,w!l<J" as a,road-w,ayfpr,ordinary travel, so far as might be found necessary to giv!'.veliicles and foot passengers access to its bridge. (2) That tbe I{rant of the 'right to build. bl'idgeLfcr the purpose of general travel did not infriDl{e the ferry franchise. (3) That the oomplaiDantB D9tentitled to cODqlensatlon for the loss oqerry as the building dt the lJilidge andsuiliallle:approachelnhereto fol'< general tr&velllad DOt out oir access to the ferry landing"or,rende,ed-it,all.Y less feasible thiUJ. operate. ferry·.. (4) That a would no,t eDjoln :the railway company from perD:iittingtOot passenl{ers an4 veblolesto travel 'over its rigbt,Ot way, to suoh extent :as be Q.ecossary to the 1>ridge. fo.r the rea\lOll. that the liamp,ges, If f"lY, incident :to .liuch· lise, Iillgbt be recovered in aQ action at'lll.w,anil were oertAUuly very1il:ri8ll,ifnotpurelYl1omlQalj and. furtbermore, becaule tlu'silway-compan, lIot ,propO"to intrude 'UP'lQ the p08seBBion of any lana. by the 0011,1· plainants. " " ' , ,.' :.. ... '. .' , L Sui:....ltmBrnt;EQtrtft'.' . . " ,. ". ' " . .' A co'Urt of to grant an unoo.nditional IlljunotloD wb" It can afford !'Ome other mariner, would hav, beell afforded i1l'the prelleDt case by requiriulfthe railway 'company to Jrlve · bond . to pay ··olt damages,·1f as might eyentually &BlIe\l8edag!'JJ¥ltlt in consealleged new "n the right of '..
OF WAY-COMPENSATION,-!N1UNCTION.
triotor Arkansas.
the Circuit CciUl'tof the United States for the Western Dis-
right Of way 'for: ilI;>proachesto a passenger and wagon bridge., Defend.ant appeals fton'X lI. decree for complainants. ' . H.' S. Priest and Alex;' G. Cochran,. for appellant. John H: Roger8, for appeIrees. Before CALDWELL. Circuit .Judge. andSHIRAS and. THAYER·.District . .:" Judges. ! ",.l,." , , ' , . ."r
&: 'Arkanslls' 'Valley 'Rail WI1Y iCompany-to· restrain the use of:defendant's
Action' by GabrieIL:Pa'ybe and Houston J. Payne against the Kansas
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. appeal from .an order continuing ,8 lnjunctiQu, l;lS apthorized, by the seventh section of the act o:f!M"fph.3, this Qourt. The solequestiopforour ,is: whether existing injunctioo was ,+:varded , and.thatj, .by thq bll1:,8;nd,al1 swer, and the affidavits and. til8\l ;ip.the.)p:wer, ,pourtoll Ihearing of the motion. The record before us shows that the apPeU,qntis a corporation created and existing under and by virtue 9( of the state of Arkansas, and that by an act of congress approved June 1,1886, (24 St. p. 73,) it was authorized to locate, construct, and operate a rail· W83. teltJgraph, and telephone line through the Indian Territory. be-
THA)"$R., Dililtrict Judge.