970
i'EPERA:L REP08T:ER.
·
vol. 59.
JlliddleQtthetrain, who told him to get on the caboose at once, as he had o.rders to run right out. A brakeman showed him the caboose. In order to reach the caboose, he was not compelled to get on a track or to cross a track. He had only 'to walk alongside the train between the tracks 3,and4,the space between them being sufficiently great to enable' him to do so safely. When plaintiff was on his way to it, a locomotive came up behind him on the main track, struck him., kn,ocked him"down,;,and ran over his arm. The witnegges called by him vary in some particulars, but they all agree in saying that the locomotive came up with cylinder cocks open, steam escaping, and makIng a great noise. They differ as to the question a bell, was ringip.g or not. It is agreed on all hands that, if plaintiff had been standing between the tracks, he could not have been hurt. Plaintiff does not know where he was standing. The clear inference is that he was either on the main track, 01' dangerously close to it, unnecessarily. Upon this review of the testimony, weCQncur the court below. Apart from the fact tllat there is Doevideneeof cOntract relation between the pla,intiff and the defendant, as passenger or otherwise, it is clear that the. plaintiff, perfectly familiar with the locality, in a place of known danger, a railroad yard",in; which locomotives were constantly passing, walked on or dangellOusly near to a track, the main track, :where, by Ms Qwn a man could pass safely between tracks if he walked carefully. His injuries were the result oChisown act. Bancroft v. Railroad Co., 97 Mass. 278. He cannot hold' the defendant responsible for them. See Railroad Co. v. Depew, &' Eng. Ry.Cas.66; Railroad Co. v. Houston, U. S. 702; Railroad Co.v.Aspell, 23 Pa. St. 147. When it is shown that an injury would not have' happened except for the culpable of the party injured, there can be no recovery, even tlwugh there be concurring negligence on the other party. The track of a railroad over which frequent trains are passing is a place of danger. A person who goes upon it unnecessarily, or witllout valid ca'(lse, voluntarily incurs a risk for the consequences of which he cannot hold other persons responsible; certainly not without adequate proof that he took active measures of precaution to guard against accident. Bancroft v. Railroad Co., supra.. The judgment of the circuit court is affirmed, with costs.
SIPE et al. v...' CQPWELL. (Circuit Court ot Appeals, SlxthC\reult. No. 82. JUDGMENTS-COLLA.TERAL 'ATTA.CK-STATE 'AND FEDERAL COURTS.
January 2, 1894.)
A decision bY.R. sfate court, sustaining personal service while defen1ants were attendll;l.g court as parties,' is binding on the federal courts, and the judgment founded upon It cannot be collaterally attacked therein on the groUDd that such service was void, 51 Fed. 667, affirmed.
SIPE tI. COPWELL.
971
In Error to the Circuit Court of the United States for the Northern District of Ohio. . This was an action by Roger F. Copwell against John F. Sipe and Carl C. Sigler on a judgment in favor of the plaintiff, Copwell, against the defendants, Sipe and Sigler, rendered by the supreme court of Rhode Island. A demurrer to the answer was sustained. 51 Fed. 667. A judgment having been rendered for the plaintiff in default of further defense, the defendants bring error. Ong & Hamilton, for plaintiffs in error. Hutchins & Campbell, for defendant in error. Before LURTON, Circuit Judge, and BARR and SEVERENS, District Judges. LURTON, Circuit Judge. This is a suit upon a judgment renappellants, dered by the supreme court of Rhode Island against Sipe and Sigler, and in favor of the appellee, Copwell. 23 Atl. 14. The defense interposed by the answer was that the judgment was void because jurisdiction was obtained by the service of process upon the defendants thereto when they were in attendance upon the supreme court of Rhode Island, as parties defendant to a suit then pending for trial. A demurrer to the answer was sustained, (51 Fed. 667,) and judgment rendered for the plaintiff in default of further defense. The judgment of the circuit court upon the demurrer filed by the appellants is now assigned as error. Is the judgment of the Rhode Island court void? We think it is not. That court had jurisdiction of the subject-matter. This is nQt contested. It had jurisdiction of the defendants by personal service of the writ of summons. The defendants pleaded in abatement the circumstances under which they had been summoned, and insisted that they were exempt from summons while in attendance as parties to another suit then and there pending against them in the same court. This presented an issue for adjudication. It was decided ad'Versely to the contention then and now urged by appellants. The determination of that question was clearly within the jurisdiction of the Rhode Island court. Its solution depended upon the statute or common law of that state. It decided that the Rhode Island statute, exempting witnesses from arrest or summons while in attendance as witnesses, did not apply to any other than witnesses. It further decided that there was nothing in the public policy of that state which exempted parties to pending suits service of process in new suits. Whether these questions were rightly or wrongly decided is a matter of no importance in the present aspect of the question. The The soundness of court had jurisdiction to determine these the adjudication cannot be questioned in a collateral attack. Cooper v. Reynolds, 10 Wall. 308; Trust C<>. v. Seasongood, 130 U. S. 482, 9 Sup. Ct. 575; Chicago & A. R. Co. v. Wiggins Ferry Co., 108 . U. S. 18, 1 Sup. Ct. 614, 617. It is not a question as to the effect of constructive or substituted service, as in Pennoyer v. Neff, 95 U. S. 714. There was actual serv-
vol. 59. ice of Whetp,er there was an abuse of the pl10cess of the court was a question for the determination of the court' whose pro· ce[,Js ie" of. v. F'itzgerald, 137 U. S. 98··105, 11 Sup., Ot; 36. The:<lecisiQn of the Rhode Island court, at inost,would ,be. erroneous, and in no .view of the ..caee is the judgment· void. Having jurisdiction the subject-matter, and of the person by actw:il service C)f process,\t had the power to determine for itself that its process had p.ot. abused, nor the jurisdiction acquired fraudulently. Its judgment is entitled to full re.spect, and cannot be reviewed by the circuit court. It is. accordingly ordered that the judgment of the circuit court be affirmed.
(OirctI1t· Court ' , ' of Appeals, Ninth Ctrcuit. ii , No. UQ.·
January 15, 1894.)
.8essIony.ritU payment should be made by cashIng their draft on the pur· chilseJ's,'with bill of lading attached. The purchasers' bank agreed with them to·guaranty payment of the draft on the understanding that the goodS aI1dblll' of lading were to be its property as security, and wired the that the draft, wIth bill of lading attached, would be paid, whereupon the latter bank caahed it. 'Held, that the delivery by the sellers of the goods to the railroad company consigned to the purchasers, and taking a bIll of lading to that effect, did not pass title to the purchasers; and that the sellers' bank acted as the agent of the purchasers' bank in receiving and transmitting the bill of lading. The courts of the United States take judicial notice of the public stat· utes of the several states.
2.
JUDICIAL NOTIOE-,sTATE STATUTES.
In Error to the Circuit Court of the United States for the Northern Division of the District of Washington. At Law. Action by the Merchants' Exchange Bank of Milwaukee, Wis., against John H. McGraw for conversion. Judgment of dismissal Plaintiff brings error. Reversed. Lichtenberg, Shepard, Lyon & Denny, (Charles E. Shepard and Sylvester & Seheiber, on the brief,) for plaintiff in error. Fishback,Elder & Hardin and Henry F. McClure, for defendant in error. Before McKENNA and GILBERT, Circuit Judges, and HAW· LEY, Distriet Judge. GILBERT, Circuit Judge. The plaintiff in error, a banking cor· poration .qf. Milwaukee,Wis., brought an action for damages against the defendant in errOr for wrongful conversion of 100 bales of hops. On the 2d day of December, 1890, A·. F. Luening & Co., hop dealers of Milwaukee, Wis., had an account with their bank, the plaintiff il,l error, which acc(mnt was at that date overdrawn. A. Luenlng, a member of the firm, stated to the cashier of the bank tha t
