124
83 FEDERAL REPORTER. BRENNAN et aI. v. DELAWARE, L. & W. R. CO. (Circuit Court of Appeals, Third Circuit. No. 18.
October 27, 1897.)
RAILROADS-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE.
To stand or walk on a railroad track, or so near thereto as to be in the way of a passing train, is negligence such as to warrant the court in directing II. nonsuit and in refusing to admit evidence ()f negligence on the part of the company.
In Error to the Circuit Court of the United States for the District of New Jersey. This was an action at law by Lawrence Brennan. and Ann Brennan against the Delaware, Lackawanna & Western Railroad Company to recover damages for personal injuries suffered by the said Ann Brennan. The circuit court directed a nonsuit, and the plaintiffs have ap,pealed. Harry E. Richards, for plaintiffs in error. George M. Shipman and Flavel McGee, for defendant in error. Before ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge. BUTLER, District Judge. The plaintiffs sue to recover damages for injuries inflicted on Ann Brennan by the defendant's train while she stood by the side of its track, with her shoulder and arm extended over. The circuit court, finding her guilty of contributory negligence. directed a nonsuit. To this direction, and also to the exclusion of testimony intended to show negligence of the defendant, in failing to signal, the plaintiffs excepted; and now assign the matters excepted to as errors. Neither assignment can be sustained. To stand or walk on a railroad track, or so near thereto, as to be in the way of a passing train is negligence at common law. It would be waste of time to cite authority for this statement. The court was therefore right in finding Ann Brennan guilty of negligence. She was in the way of the train without excuse for being there. It was consequently unnecessary to inquire whether the defendant was also negligent; and the offer of testimony was therefore properly excluded. Its admission could not have benefited the plaintiffs. It may be remarked however that the offer did not tend to prove negligence. No crossing, in a legal sense, existed there; and the offer does not suggest that the ground indicated the existence of a custom such as the offer states, or that the defendant otherwise had knowledge of it. If however the custom existed and the defendant had knowledge of it, the plaintiff, Ann Brennan, would be without justification in standing there. The judgment is therefore affirmed.
RATHBONE V. BOARD OF COy'RS.
125
RATHBONE v. BOARD OF Cm1:'RS OF KIOWA COUNTY, KAN.l {Oircuit COW't
of. Appeals, E1ghtlJ. Circuit.
September 13, 189701
No. 788.
L
CONSTITUTIONAL
Under the Kansas constitution (article 2, § 17), prohibiting specllll legislation unless necessary, it is for tbe legislature, and not the courts, to determine whether a special law i8 necessary.
LEGISLATION.
.. COUNTY BONDS-VALIDITY-TIME OF ISSUANCE.
The Kansas statute of Marcb 1, 1876, providing for the OTganization ()f counties, townslJ:lips, and scbool districts, as amended by the act of February 18, 1886 (Laws 1886, p. 123, c. 90), prOVides that no bonds of any kind sball be issued by any county within one year after the organization thereof; but the same section contains two prOVisos, the first of wbich declares that "none of the provisions of this act shall prevent or prohibit the county of Kiowa · · · from voting bonds at any time after the organization of SIlJ.d county." Held" that this pr'oviso In favor of Kiowa county was valid, and authorized it to vote bonds as BOon lIB it was organized. 73 Fed. 395, reversed.
.. SAME-EXCESSIVE ISSUES-CONSTITUTIONAL LIMITATIONS-AsSESSED VALUE.
County bonds were issued under Laws Kan. 1876, p. 159, c. 63, as amended by Laws Kan. 1886., p. 123, c. 90. The act limited such i8SUes to a certain proportion of tlJ.e assessed valuation of county property. It was not contemplated tlul.t these bonds should be Issued prior to December 31, 1887, and none were issued until August, 1887. Held, that the assessment for 1887, made lIB {)If March 1, 1887, was the one that controlled.
.. SAME-INNOCENT PURCHASERS-RECITALS.
KIowa county, Kan., had authority In 1887 to issue certain bonds, to the amount of $126,008, and no more. It issued two distinct seTies to two separate railroad companies,-each series for less than tbat amount, but together exceeding it. The total issue of each series, respectively, was reclted In tlle bonds belonging thereto (but not In the coupons), and they contained broad recitals as to due complian('e with legal reqUirements. Plaintiff bought coupons of one series from A., and of the other series from B., neither of Whom had owned bonds of botb seTles. Held that neither A. nor B. was charged with notice of the excess, and that plalntllr had acquIred all theIr respective rights. On Motion to Modify Judgment.
I.
DECISION ON ERROR-REVERSAL-CASE TRIED ON AGREED STATEMENT-ENTRY OF JUDGMENT BELOW.
Wben a jury bas been duly waIved, and the case tried to the court on an agreed statement of facts, and the damages recoverable are a liquidated sum, the appellate court, on reversing a jUdgment for defendant, will not award a new trial, but will direct a judgment to be entered against defendant.
of Kansas.
In Error to the Circuit Court of the United States for the District
'!'hIs suit was brought by Charles D. Rathbone, the plaintiff in error, agaInst the board of county commissioners of Kiowa county, Kan., the defendant In error, upon 92 coupons detached from 46 railroad aid bonds wbich were issued by Kiowa county, Kan. Thirty-two of the coupons were detached from 16 bonds, belnga part of 60 bonds. of the denomination of $1,000 each, which were Issued by saId county on August 4, 1887, to the Kingman, Pratt & Western Railroad Company (hereafter termed the "Kingman Railroad Company"). The remaining 60 coupons were detached from 30 bonds, being a part of 85 bonds, of the denomination of $1,000 each, which were issued by SIlJ.d county OD Octoher 3, 1887, to the Chicago, Kansas & NebrllBka Railway Company (bereafter termed the "Cbicago RaIlway Company"). '!'he county originally agreed I RehearIng denied December 6, 1897.