EASON
EAST· TENNESSEE, V. &: G.RY. 00.
935
obblined. ,(fa:mpbllll, v. Wilson,. 3 East, 301; Daniel North; 11 East, 374; Smithv.Doe, 6 E. C. L.. In Sargent v. Ballard, 9 Pick. 251, there is in the opi!1ion. of Ju4ge PliTNAM that. extend the doctrine to easements generally, but the question of knowledge of the owner was not involved in that case, and the were evidentl,r n?t considered by him·.. We are, however, of opinion thattbe statute of Florida is controlling in this matter. It provides: "For the purpose of constituting an adverse posspssion by a person claiming title not. founded upon a written instrument, jUdgment, or d"cre£l' land shall be dremed Whave bee? posseslled and occupie!lin the following cases only: First, where it has been orutectpd by a substantial inclosure; or, Becond, w here it bas been usually cultivated or improved." We are of opiij.ion that to add the ,words, "with the knowledge of the owner," would be an amendment of the statute. That whether possession is open, notorious, continuous, exclusive, without leave or favor from the owner of the fee, -in other words, adverse to' him,-is a question for thejury to decide on .the proof, and is in no mallner affected by the owner's ignorance (if he was ignorant) of the adverse holding; and that there was error in the charge given in this case 011 this point" and in refusing to give the requested charge indicated. For the errors herein noted the case is reversed, and remanded to the circuit court, with direction to grant the defendant in ejectment So new trial, and it is so ordered,
EASON fJ. EAST TENNESSEE, (Ctrcldt
V. & G. Ry. Co.
Oourt
qf AppeaZ8, F1,fth. C(rclI:u, .Tune 13, 1892
No. 24. RAn.:aOAD COMPANIES-NEGLIGENOE-CHILD ON TRAOK-INSTRUOTIONS.
In an action by a mother against a railroad company, under Laws Ga. 1687, p. 44, for the killing of her minor child, plaintiff's evidence was that, when near the track,. the child was caught up by a slowly moving switching train, and carried a long distance, woile the operators of the train looked on without attempting to render assistance or to stop, which might easily have been done. Defendant's evidence was tllat the child ran upon tile track without warning, and was struck before the train could be stopped, tllough this was done as soon as possible. Tllese theories were pressed by tile respective counsel, and the law applicable thereto explained by them. 'l'he court, after explaining the general pnnciples of law as to negligence and contributory negligence, stated these conflicting theoriee· to the jury, and said that, if defendant's view of the case were true, it would not be liable, but, on plaintiff's theory, it would be necessary for tile jury to believe that knowledge of the. boy'S perilous poshion was brought home to the train employes, or that the warning was such that they could have known the same, and could have etopped the train, and saved the boy's life, in which case the company would be liable. l1eld., tllat this cha,rge was sUfficient, and it was not error to refuse charges requested by plaintiff, stating what was wanton and reckless eonduct,and that the same would render the company liable, notwithstanding prior contribut.ory negligence by the child or its mother.
In Error to the Circuit Court of the United States for the Northern District of Georgia.
936
Fll:DERAL
REPORTEn, vol. 5h
Actibh,bt:4ula, Easonagairist the East Tennessee, Virginia & Georgia Railway Oompa.ny for the killing of a minor child. Verdict and judgment for deferidant. Plaintiff brings error. Affirmed. Alex. O. King, for plaintiff in error. AlbertHdWell, Jr., for defendantin error. Before PAR1)EE and MCCORMICK, Circuit Judges, and LOCKE, District Judge. ' MCCORMtck; Circuit Judge. This Was an action to recover damages for the neglige!}t homicide of plaintiff's minor child, under the Georgia statute of 1887, which provide& that"A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui jU1'is, upon whom. she or he is dependent, or who contributI'S to his or her support, unless said child leave a wife, husband, or child," See Laws Ga. 1887, p. 44.
The plaihtiffprovod the statutory conditions essential to maintain the action, such as contribution to support and partial dependence, about which there is no dispute. The case went to trial on the merits. Plltintiff's evidence tended to show the following: , "The deceaspdchild was eight years old. His mother, the plaintiff, was l\ laundress in .A:tIlinta, and the child, besides contributing to the mother's support by in that. business at home, was sent at times to .collect money. On the day of his killing he was sent to collect money on Peachtree street, in Atlanta, a point which lay beyond defendant's tracks. There was a safe passage on his route by Magnolia or Foundry streets, under defendant's tracks, and the mother had (as she testitied) bidden the child not to go on the railroad track. On said day, instead of going directly on the errand, the child went 011 the high embankment.of.defendant's railroad above thl' streets, which passed under the railroad, and played there with other children, with whom he was, in the habit of plaring there. The child was playing at Magnolia street trElstle. A switch engine of defendant, pushing· irl front three box cars and pulling behind five or six. other cars, came in the direction of the Jhildren, running at a speed of' four or five miles an hour. Two men stood on the front cars. 'fhe decease,d child crossed in front of the train. ,was lj;nocked down, and caught npalive by the breale beam or rod, or some 'Of the in front oBhe car. He was caught in the clothes, and :hls body lifted and suspended above. the track. In this manner he was carried, alive and sc.reaming, · Oh, Lortlyr ()h Lordy!' for one blocle, or the distance of three hunl1red and eighty (380) feet. During this time the .engineer 'and crew of the .trllin made no effort to stop it. The train ran so slOWly that /10 person could readily get on and off it, and it. could .have. been stopped at this point at from one to three car lengths, or from 34 to 102 feet. The companions of the child ran alongside of the train, screaming all the way. They shouted, · Stop that train, or you will kill a boy,' Mid, 'You have caught a b,oY under that car.' One of the crew, standing on the car, looked down at the children and laughed. The engineel' looked out at them, and said, ' I don't care; som.e of them ought to be killed.' Citizens standing ar;ross an adjacent street peard cries of, · Oh, Lordy! Oh, Lordy!' and other cries. After rolling 380 feet to Foundry street trestle, the boy's clothes and hold broke, he feIl across the rail, was rolled over, mangled, and killed. 'fhe engine looked down and uttered an oath. passed over his body, and "The defendant's evidence directly contradicted the plaintiff's, and tended to show that the child stepped on the track without any warning, and was
v.
EAST TENNESSEE, V. & G.RY. 00.
937
immediately run over and killed. That the children were not at Magnolia but at Foundry street trestle. That there WElre no cries before the bOj' was run over, hut after he was killed the otllt'r children screamed and holloaed and ran off the embankment, That the child was not caught up and carried. was not seen on the track, and that, if there had been cries before the boy was killed, the train crew would have heard them. That the place was no crossing. That there was a lookout on the elld of the car in direction of the child. That this child had been in the habit of picking up coal on the tracks at this point, and had once before been carried to its mother by the railroad employes. The mother was in the habit of sending him there for the purpose of gathering coal and chips. That the engineer did not use the language attributed to him. That the train was stopped as soon as possible after striking the child. The road had used every effort to keep these children, including this boy, off the track at this place. That the day before, this boy got on the track before the engine. and forced it to stop and the fireman to get off and run him off, and, as soon as he returned to the engine, the boy went back, and placed his sack of coal on the track before the engine." On the case thus presented, the trial judge charged the jury as follows: "This is a suit brought by the mother of a child to recover the value of his life, under a recent act of the legislature of Georgia. In order for the mothel' to recover at all in this case, it would be necessary to show that the child contributed to her support, and that she was substantially dependent upon such child, in part, for support. It would be immaterial if the proof shows that she was likewise deptmdent upon her own labor for support. The inqUiry is, you perceive,-and I read you the language of the supreme court of this state construing the act under which this action is brought,-that · the child must contributl:l to htH' support, and the prollf must show that she was substantially dependent upon such child. in part, for support.' If this fact exists, and if she is entitled to recover at all. after I have given you some principles of law which control the case, she is entitled to recover for the life of the child withollt any deductioll therefrom for the expenses of the child through life. 'The full value of the life of the deceased. as shown by the eVidence, shall be held to be the full value of the life of the deceased, without any deduction of the necessary expenses of the deceased had he lived.' Under the law, before this act, there was a deduction made; and to illustrate what the law means by that, when a wife, for instance, recovered for the death of her husband, there would be a deduction, after ascertaining what he could earn, for what his own expenses would have been. This law changes that, and the value of the life is to be considered without that. Of course, whether or not the plaintiff is entitled to recover at all depends upon wbat you may believe from the facts in the case. after the court has given you certain principles of law to control you in your deliberations. The jury, in , arri ving at the value of the life of the child, if yOIl get to that point, may consider, if you desire to do so, and it is for yOll to determine, some tables which have been offered in evidence,-mortality tables and annUity tables. It is for you to say from the evidence, taking it aItogethel', if the plaintiff is entitled to recover the value of the life of the child.-of this boy,-and you would find aecordingly. "The first inquiry of the jury upon the question of liability is whether or not the defendant in this case, by its servants and employes, was guilty of negligence. It was the duty of the defendant, by its employes in charge of this. train. to have exercised ordinary care and diligence in the managelllen·; of the train as to any pel'son who might be upon the track, and this care and diligence would be considered by the jury in reference to the location of the
988
'Il'BDERALREPORTER,
vol. 51.
pliloe.Youwill considerwbat they were doing, the business in which they wfife engaged, the way the train was made :up, the question of a lookout, aod Ub$eI;lV'& where they weregtlfng, and, Kgahl, In thatconnection;whether or not .pertrons were in the habit of, passing to' and fro Mross the track away from the this,Polnt; andisee whetheili there was due care and diligence exercisedon 'the part of these:employes in reference to that fact. !!The: jury would ascermin,'ilJ. the first place,wbetheror not the defendant, by these employes, In the of this train, was guilty of any negligence.' uIf·they were not· gUilty of any' negligence, your duties would end tbere,·fiM you would find for the defendant;· It would not be necessary to go any tu,other in your investigation of this case. If you should believe. from the fatits'in this casp, that the defendant, through its employes. was guilty of negliltancedn failing toexereise ordinary care and dilij;tence in the man· ttgemfnlQf this tra:in, still; if the plaintiff. by the exercise of ordinary care on her part, could hl,ve avoided, this accident to her child, she would not be entitlecUo J'E'COver, although you might believe the defendant's employes were Ituilty of Dl'gligenooo That. you may fl1l1y understand it. I will repeat that, if the by the exercise of ordinlJ,ry care on helo part In referl'llce to this chlld/eould have aVOided the accident to the child, though the defendant was Kuilty of she would not be entitled to recover. The contention henHa 88 to the plaintiff allowing the ,child to go upon the track, and to be upontiliw track. In that connection Y011 would consiller, of course, what evidence. there was, and w.hat these childrensaid as to this boy being sent upon a particular errand, as to whether that was dangerous or not; whether the facts show Jhere were ways to under and around without danger. and the other..evilillnceas to thp deceased and these other children being fre. qut-ntly seen upon these tracks and about these tracks, and whether notice had been brollgllt4ome to the mother that the!')ecbildren had been upon the track; what evidence there was upon that subject you should consider upon the question as to whethpr she herself WbS guilty of negligence· .. As to the negligence of· the child. I think the law Is that the jury must believe that the child was of 811 fficient alo(e, of 'such maturity and in telligence. as to know the danger of ('rossing a railroad track in f!'Ont of a moving train . . the child of 8ufficientage and maturity, mentally, to know the danger in which it placed itself in Koing in front ofa moving train? That is for the y jl1lo to determine. Unless it had, the law would not charge it with any neg. ligence at aU; lfhehad sufficipnt age and intelligpnce to know the danger there would be, and the, risk in going- where jt did, the negligence of the child W'ouldbeciJllsiderl'd, and if it. by the exercise of ordinary care. could have R''V'oided tbe acddent, the mother here would not he entitled to rpcover, even if you find the defendant's employes gUilty of negligence. However, thet'e are two versions to this case, which seem to the court to control it. and as to what you maybelieve in reference to that, I ha ve just given you the principles of law in cllllrge, which I have stated as general principles of law and applicableto this case. It is said on the part of thedet'endant that this acddent occurred at one place, and on the part of the plaintiff at another, and considera. ble evidence has' ,been introduced pro and con upon that subject. Now, if you ,believe that the child walked or ran in front of this movin/( train. there being a proper lookout on the train. without notice to the defendant's employes that he intended to do so, and was knocked and immediately run over and killed before the train could be stopped, the plaintiff would not be entitled to recover. Now. Net', gentlemt'n, in the first place. whether that is true of the case as ad vanced .Ilere by the. deft!ndant, and by the witnesses presented by it .to sustain that'view of the case. If you believe that to be true. if you believe the chUd walked or ran III front of this moving train, -there being a notice to the defend· lookout on the truin to notice in front of
EASON V, EAST TENNESSEE, V. & G.RY. CO.
939
ant's eUlployes that he intended SQ to do, and he was knocked 'down and immediatt'ly, run over and killed before the train could be stopped, the tiff would not be entitled to recover. There would be no evidence whatever froll) which you could SIlY there was negligl'nce, and the court would not be willing, if those were the only facts in the case, to sustain a verdict in favor of the plaintiff. and the jury would not be authorized to return one if thev believed these facts to be true. "If, on the oth!'r band, thh child was knocked down and caught up in some way and was carried for some distance, as contended here. theu th" question wuuld be this: Did these employeR know, or did they have such warning as, if they had given heed to the same. and exercispd ordinary care. they wOlild have known, the pl'rilous condition of the boy. and could they, by the exercise of dlle care, in view of such knowledge or warninK, have stopped the train and saved the boy's life? If so, the t1eft'ndant would be liable. 1 repeat, gentll'men, did the deft'ndant's employes know, or did thl'Y have such ings as, if they had given heed to the tlame, and exercisell orllinary care, they would have known, the perilous condition of the boy? Then, if by the exercise of dul' Cllre, in view of sllch warninl( or knowll'dge, theY could have stopped the trllin and saved the boy's life, the defenllant would be liable. 'fhese are the two colltentiolls in this ca'le, and it is for yon by the evidence if one or the other is true. There is no evidence that t,he occurred in any otllt'f way. COllnsl'1 have argued the facts at len>[th, and the whole ter has b"tm presented for yonI' consideration. I not undertake to go into a discussion of the evidence at this late hour. beallse you have had it thoroughly and fully discnssed before you. Which view of the case is true? The defendant's view of the case, as I nnderstatld it, would come within the principiI'S of law I have gh"en yOIl,-the dd'endaut wOlild not be liable. In the plaintiff's vipw of the case, it wonl,l be habit'. In the plaintiff's view of the case, it would be necessary 1'01' yon to believe that knowledg" was brou/tht home ttl these !'mployes, or the warning WM such they could have known the condition of the boy, and could then have stoppl'd the tmin and savell his life. II' that is true, the pla:ntil'f wOLIld be enLitled to recover, and ought to be entitled to reCOVtlr in law anywhere, of courtltl." There was a verdict for the defendant. The following assignment of errors shows the requested charges re,used by the court: "(1) The conrt erred in to charge the follOWing written request of prt'senled in propel' time lIud manner: · The negligence of the child, (it' yOIl lind he Was capal,le of legal ueglil(encl', IInder the already gh'en..) or the negligenceof his luoth!'l', if yon lind tlhe was is no excllse for the defendant, if the agt'nts alld employes in char'ge of this trllin could have prevented the killinl{ of this child afler they knew. or should have known, its perilous position. ::iuch killing the la w wonld denominllte as reckless, Willful, or wanton. and no dpgree ut negJigt'uce by the child 01' its mother wOlild the defendant in this event.' The refusal to give this request in charge was elTor, uecause the same WIlS ll'gal and appropriate. anu was nowl,ere cllvered by tlie cOllrt in its general charge. "(2) 'rhe rOllrt erred in to charge the follOWing writtl'n request of the plaintiff, presented in proppr time and manlier, to wi.t: 'The fact that the dl'ct'atled child was tre!lpassllll{ on defendant's tracks did not render it lawful to kill him if such killinl{ could have been Ilvoil.1ed l.Jy using ordinary care. If this child was caught by delendant's car, and was unable to I'xtricate himself, and the t'lIJployes in chlll'ge of the train knew, Of should have known. by using ordinary diligence, of the child's periluus pos,tioll,llnd have stllpped the train, and yet rt'cklessly ur willfully or wantonly carrit'a the child withollt stopping or attempting to SLOp until he WaS killed, the defendant would be
940
FEDERAL REPORTER,
.
liable;' ,i ,The refusal to give this request in charge was error, because the same and appropriate, and was nowhere covered by the court hi its general!oharge. pourt erred in refusing to charge the following written request of piamtiff, presented in proper time and manner, to wit: · If this child was caught un the end of a car, and was carried a considerable distance. and then run over, lind the train could have been stopped and his life saved, the railroadis .liable, the mother may have been guilty of gross negligence in sending the child on the track.' '.rhe refusal to give this request in charge Wal:l error, because the same was legal and appropriate, and was nowhere covered by the court in its general charge. , "(4) The court erred in refusing to charge thl) following written request of plMnfiff, presented in proper time and manner, to wit: · The fact that the mother sent this child to .Peachtree street to collect money is not negligence if the ohild was not instructed to go on this railroad. and if the child could Peachtree street by not passing over the tracks.' The refusal have to give in chargewRs errol', because the same was legal and apI'ropriatel.andnowhere cov'ered by the court in its general charge." f
-·'-;',i
·
The fourth error assigned is not mentioned in the brief oicounsel for the 'plaintiff in error, and will be considered as waived. The othAr three errors resolve themselves into this: that the trial judge should baveaqded to the last paragraph of his charge as quoted above: negligence of the defendant waS wanton and willful, and the cbilcFama equid have been saved by the employes in charge oithe train, after its plll',ilQl1sposition was known. (or, under the circumstances. should have been said employes,) the negligence of the child in going upon the .. of his mother in allOWing him to be there, would not relieve the uefendllUt." is/evident from the record that the general charge was oral, and not reduced to writing, (in longhand,) until after the trial. The verdict was retqrned November 27, 1891, and there is in the record, immediately following the charge, this memorandum signed by the judge, and dated December 2,1891: "Thefforegoing charge is approved as correct." The trial had protracted .that day's session of the court to a late hour. The coulisel for the respective parties had discussed the evidence thoroughly arid fully. They had doubtless, as the manner of counsel in such cases warrants us in IIssuming, stated in the strongest light possible, under the sanction of adjudged cases, their view of the law as applicable to their respective contentions as to tliefacts proved by the evidence that had been given the jury. The, plaintiff's counsel had just concluded summing up of fact and law to the j\lry, and the judge then proceeded to instruct the jury orally . He mqst give such instructions, and 9plysuch, as are applicable to the evidence admitted. What, therefore, Is more natural and proper than that· he should take up the case as the themselves had presented it to the jury, and, by way of preface and' eXlllanation to the single issue to which the trial had reduced it, jury the receiV'ed doctrines as to negligence, primary and conIt is not contenqed that the charge, so far as it goes, is not $our.id, the only -contention ·being that it does not go far enough, and more distinctly instruct the jury that the doctrine of contributory negli.
It
THE LEPAGE 00. V. RUSSIA CEJIENT CO.
941
gence, as stated in the charge, is not applicable, if the proof satisfies them that the killing occurred as plaintiff contends. Keeping in mind the time and circumstances of its delivery, we are satisfied that the charge of the court is not subject to the criticism the plaintiff levels at it. After covering the whole case, as it was doubtless presented in the pleadings, (only the petition of plaintiff is sent up,) and in the evidence, and in the exhaustive argument of counsel, the judge, in conclusion, tells the jury: "These are the two contentions in the case, and it is for you to determine if the one or the other is true. There is no evidence that the by the thing occurred in any other way. ... ... ... Which view of the case is true? The defendant's view of the case, as I understand it, would come within the principles of law I have given you,-the defendant would not be liable. In the plaintiff's view of the case it would be necessary for you to believe that knowledge was brought home to these employes, or the warning was elUch that they could have known the condition of the boy, and could then have stopped the train and saved his life. If that is true, plaintiff would be entitled to recover. "
We of opinion that on the point complained of the charge was <:lear and full, and to have repeated the instruction in the terms of the requested charges would have given it undue emphasis. 'Ve are therefore of opinion that the judgment of the circuit court should be affirmedj and it is so ordered.
TuE LEPAGE Co.
RUSSIA CEMENT
Co.
(01n'cuit Oourt oj
First Circuit. September 15, 1692.) No. 17.
1.
ASSTGNMENT OF RIGHT TO USE OF NAME-IN"FRINGEMENT BY ASSIGNOR,
One Lel'age, having originated and soid extensively throughout the United States an article styled "LePage's Glue," organized a corporation, to which he transferred the assets and good will of the business. He continued active in the corporation for some time, after which he sold all his stock, and retired therefrom. Subsequently he manufactured individually a similar ar',icle, which he sold as "Glue made by LePage, " and tbereafter formed a new corporation, "The LePage Company," which sold the article as "Glue Made by The LePage Company." Held, that this was a violation of the right acquired by t.he original corporation to the use of the name "LePage" in connection with glues. Where such infringement is cleat', proof of actual fraudulent intent is unnecessary. The rights of the original corporation wet'e not affected by the fact that, after retiring therefrom, LePage obtained a patent on an alleged improvement over the original glue, and that the patent laws (Rev. St. 54900) required notice to be stamped on each package of the pal;ented article.
-2.
SAME-FRAUDULENT INTENT.
.8. SAME-PATENTED PREPARATION.
4.
SAME-ASSIGNMENT-EsTOPPEL.
.Ii·. SAME-ESTOPPEL So ne time before commencing the suit, the attorney for the original corporation, referring to prior litigation in the state courts, wrote as follows to defendant's
The LePage Company, by accepting the assignment of the patent, and allowing LePajte to manage and control its business, barred itself from denying that it was proceeding under his authority and as his sl1ccessor, and therefore it could have no greater rights, as against the original corporation, than LePage himself.