NORTHERN
V.
211
103 U. S. 99. Seetio:p 5201 expressly prohibits a loan by a national bank upon the pledge of its own shares; but it has been held that, if the prohibition could be urged against the validity of a transac· tion by anyone except the government, it could only be done before the contract was executed, and while the security remained pledged, and that the illegality of the transaction would not render the bank liable to the pledger for the payment to him of the money realized upon the sale of the security. Bank v. Stewart, 107 U. S. 676, 2 Sup. Ct. 778. Section 5200 provides that no bank shall loan to one per· son or:firm an amount to exceed one·tenth of its actually·paid capital stock; but it is held that, if a greater sum is loaned than is allowed by this section, that fact may not beset up in defense to an action for recovery of the money so loaned (Gold Min. Co. v. National Bank, 96 U. S. 640), and that the statute was intended as a rule for the government of the bank, and did not render the loan void (O'Hare v. Bank, 77 Pa. St. 96; Pangborn v. Westlake, 36 Iowa, 546). We think the reasoning upon which these conclusions are reached is applicable to the case before the court. We hold, therefore, 'that an indebted· ness which a national bank incurs in the exercise of any of its au· thorized powers, and for which it has received and retains the con· sideration, is not void from the fact that the amount of the debt surpasses the limit prescribed by the statute, or is even incurred in violation of the positive prohibition of the law in that regard. The defendants in error rely upon decisions of the supreme court in which it has been held that municipal bonds issued beyond the limit prescribed by the legislature are void. Crampton v. Zabriskie, 101 U. S. 601; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. 315; Daviess Co. v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897; Litchfield v. Ballou, 114 U. So 190, 5 Sup. Ct. 820. Those decisions rest llpon principles entirely distinct from those involved in the case ll.t bar. The amount of the authorized issue of municipal bonds is always ascertainable by a reference to public records equally accessible to all; and the officers of the municipal corporation are public servants, whose unauthorized acts do not bind the public. In the case of a national bank, no such public record is provided, and no method is pointed out by means of which the status of the bank's indebtedness can be ascertained. The judgment is reversed, at the cost of the defendants in error, and the cause is remanded for a new trial.
NORTHERN PAC. R. CO. v. AUSTIN. (Circuit Court of Appeals, Seventh Circuit. November 27,1894.) No. RAIl,ROAD COMPANIES-AoCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.
Where deceased was killed at a crossing where his view of the approaching train was obstructed, and the engineer did not see him Ull he was 20 feet from the crossing, and the engine 60 feet from it, hdd, that t1;le queBtion ot contributory negligence was for the jury.
212
1I'imn..u.
BEPORTEB,
vol. 64.
IIn'Error to the Circuit Oourt of the United Statel for the Wesrern District ofWil1lconsin. Actitmby Margaret Austin against the Pacific Railroad Company. Plailltiff obtained judgment. Defendant brings error. Thomas H. Gill, for,plaintiff it). error. S. N. Dickinson, for defendant in error. Before WOODS and JENKINS, Circuit Judges. JENKINS, Circuit defendant in error, as administratrix of the estate of her deceased husband, Willard Austin, brought her. ,actiQJl .under a statute of the state of Wisconsin to recover damages for 1ilie death of her husband, caused by the alleged negli. of the plaintiff in error. The accident by which the deceased came to his death occurred at a highway crossing called ''Paint Creek Orossing," some three miles east of Chippewa Falls, on the Wisconsin Central Railr6ad,at the time operated by the plaintiff in error. At that point there was a single track running l:lubstantially east and west,crossing the highway at right angles. Westerly from fue highway, and for a distance of about 275 feet, the railway runs on a sharp curve through a cut of from 10 to 15 feet, then for 225 feet oyer a fill, then entering and continuing in a cut westerly for something oyer 100 l'Qds from the highwt1.y. One standing: on the railroad track at the crossing is unable to see a locomotive approaching from the west for more than a distance of 60() feet. At a distance of 15 feet from the. center of t'he track a locomotive approaching from the west can only be seen within a distance of 100 feet from the crossing. The between Chippewa Falls and Cadott, Which crosses this railway ttt the-place of the accident, on the southerly side of the railway.curved around the intervening hill between the highway and the railway, an approaching train being hidden from the sight of a traveler on that part of the highway for a distance of 300 feet and oyer before reaching the crossing; and for a distance of about 80 fee': from the crossing the intervening hill seriously interferes with the hearing by a traYelerupon the highway of the signals of trains approaching the crossing from the west. The accident occurred at about 8 o'clock in themor:n.ing of the 12th of February, 1892,-a clear, cold, frosty morning. The deceased, who was familiar with the crossing, was driving a fairly spirited team hitched to a pair of bobs. According to the testimony of the engineer of the train, which came from the west,:q.e first obseryed the decea,se(l when the train was about 60 feet from the crossing, and the horses were about 20 feet ,the track. /l'he train had a speed of about 18 miles an hour, and. the horses were traveling at about the rate of 6 miles an hour. The deceased was standing in the middle of the front bob with hiso.Yercoat on, it$ collar turned up around his face, and a scarf s'6:Ch article tied around collar. The negligence charged was th.efaUure of fue engineer to the whistle or to ring the bell on thenpproachof the train to the crossing, and also a failure by the company to restore to its former state of usefulness the highway
the
NonTIIERN PAC. R. CO. V. AUSTIN.
213
in question, which had been changed when the railroad was con· structed, so that the travel at and south of the crossing must turn to the southwesterly, around the base of the hill, which thus ob· structed the view of trains approaching from the west, whereas previously the travel had gone directly over the hill. The only question we are asked to review is that of the alleged contributory negligence of the deceased. It is asserted that the undisputed evidence establishes, as a matter of law, such contributory negligence. It is unquestionably true that it is the duty of a court to withdraw a case from the jury where the evidence of con· tributory negligence is so clear that reasonable minds can draw but one conclusion from the evidence. The however, is gen· erally one of mixed fact and law, to be resolved by the jury under proper instructions from the court. Railroad <:Xl. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Elliott v. Railway <:Xl., 150 U. S. 245, 14 Sup. Ct. 85; Railroad Co. v. Meyers, 18 U. S. App. --,10 C. C. A. 485, 62 Fed. 367; Railroad Co. v. Kelly, 18 U. S. App. -,63 Fed.407. We cannot say, after a careful review of the testimony, that, as matter of law, the deceased was guilty of contributory negligence. We think that it was a proper case for submission to the jury, and that it was fairly and fully submitted by the court below. It was undoubtedly the duty of the deceased, in approaching this dangerous crossing, and which he knew to be dangerous, to exercise all due care and caution to avoid injury. It was his duty to listen and to look for approaching trains. Possibly, it was his duty, in view of the sur· roundings, to have stopped his team, and to have proceeded to the crossing to look for any approaching train; and :ret it may well be observed, as was suggested 'by counsel, that had he done so, and, observing noue, returned to his team, a train going at like speed with this one have come upon the crossing while the deceased was returning to his team and was driving them over the crossing; so that it became a question for the jury to determine whether the deceased did in fact so stop and look and listen, and whether, under the circumstances, it was prudent to have so done. The witnesses testifying to being eyewitnesses of the accident were Phipps, the engineer of the train, and one Montana. It is asserted that the evidence of the latter witness establishes that the deceased did not stop, did not look or listen, but drove upon the crossing without using any precautionary measures to discover an approaching train. It may be open to question if his testimony goes so far. But, if it did, a fact is not always established because asserted by the uncontradicted testimony of a witness. There may be circumstances dis· closed, impeaching his credibility, of such character as to carry a case to the jury upon the question whether the witness is, worthy of belief. There were such circumstances in this case with respect to this witness. It would serve no good purpose to enter into detail, but we think it cannot be said that the jury were unwarranted in refusing credit, to his testimony. The evidence of the engineer, Phipps, giving full credence to it, does not so clearly disclose negligence on. the part of the deceased, contributing. to the injury, .that the presumption that he was in the exercise of due care can be said
214 to '·. :r .· . . ;;. to on.ill.e.' w.Ith.. d "· .. of !he. case froib· 'j\1ry.. ''When PJ{1ppsfirst saw: the team he was wIthm 60 feetof',the"'croStling, his·trliln having ,a of 18 miles an hour. The fuam was 'within 20 feet of the crossing,pro,ceeding at the rate of 6, JUlIes an hour. A collision would necessarily result within two seconds.. 'This does not tend to show that the deceased had not stoppefll' and had not proceeded to the track and looked and listened'...·· I1:'does not appear, with that clearness that would justify the takIn'g' of. tbe case frori;J. the jury, that after the train came within his sight 'the accident CO,VId have' been' avoided by due care upon the partof'tlle ileceased, theb1irden of proof being upon the company. circumstances attending. the actions of the Undoubtedly; there deceased'uporithe OCCQSidn in question, as disclosed by the witnesses menti0l,Ie'd, 'tbat, if their e\"idence may be relied upon, go far to show a wi:\nt of't.hat, care denttinded by the dangerous character of this crossing. At the. same time, bearing in mind that no one can speak to the transactionfrom the sta,ndpoint of the deceased, and that the credibility of one of the witn.esses was, seriously impugned, we cannot say that minds could draw but one,_ conclusion from the testImony, q'ildso authOnzeus to declare, as matter of law, that the conclusion, toW'h:ich thejliry arrived upon the evidence was unwarranted, and counter to thefaet and the law. We see no error in the sUbJUission6f the cause,l:tp.d no grOund calling upon us to disturb 'The judgri1ent will be affirmed. the '.,ti.' ' ..
THE HAYTIAN REPUBLIO.
U:NI'.l'lJ}D STATES v, THEHAYTIAN REPUBLIC. (District Court, JUDICIAL SALE.,...CABH BID. At a by. Q.. _J;i:!a.rshal
n. Oregon. No. 3,403.
November 5, 1894.)
a decree directing him to sell for not less than $15,000, '#ith power td accept a bid of $10,000 in cash, balance on credit, if thete. was no cash bid for the full amount, the property was knocked down, to petitioner for a caSh bid of $16,050. It being past bankhaving only a certified check of ing hours m:JI., Saturday, and $10,000, M it.to the marshal as part p8J'ment, with the statement that he Cl:)tI1d keep it as forfeit if petitioner did not pay the balance Monday morning. The marshal, immediately a.ft:er stating that this would M' sa1ii$f,aCtory, refused to accept it, rejected the bid, and made a,private the. next. lowest bidder. Held that, as a cash sale required on thltllame day, petitioner could not complain.
lie for breatlb.' of the revenue laws. - It was sold under a decree forfeiting it to the United states. E. W. Price and Lee Wheeler peti· tion that title 'be given them under their
Libel bytheUrlited States against the steamship Haytian Repub·
ItUfus··MalIOrY·' and James Gleason, for petitiqners, Price and Wheeler;.' .' ... ' . ..... " '. . O. EoS.- Wood and S. B. Linthicum,}()rrespqn4entB Sutton and Beebe. : . " " . ,-' . ..