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must be laid out of consideration. They testified that they gave the signals to stop by word and by gesture. The engineer and fireman testified that they were looking at them as they passed, but that they saw no such signals. There is here substantial evidence sufficient to sustain a finding by a jury either way upon the issue of the plaintiff's negligence in disregarding this disputed warning, and that issue was properly submitted to their determination. It may, however, be remarked in passing that it is not very probable that Roddy would have run on into the pit in the roadbed if he had seen and had understood the signals of the Italians for him to stop. The lights in Mascolene's lanterns went out, so that the engineer probably never saw them. Mascolene did not stand between the rails of the track to give his signals as he should have done, but upon the side of the track. Few, if any, of the Italians could speak English, so that it may be that the engineer did not understand what they said. These facts go far to explain their failure to convey their warning of danger to the mind of the engineer as he gazed at them from the window of his cab. What more is there in the evidence to sustain the demonstration that a reasonable man in the situation of the plaintiff would have perceived the danger, and would have stopped or inquired or sent a man forward to examine the roadbed? The filled culverts, the flooded fields and streets at New Hampton and at Alta Vista, and the gesticulating citizen at the latter place who gave no signal to Roddy to stop his train. But the care of the roadbed and of the track was intrusted primarily to the sectionmen at Elma, the operation and care of the engine and of the train to the plaintiff, Roddy. The primary duty of inspection, of watchfulness, and of preparation of the track for the passage of Roddy's train was upon the sectionmen at Elma. The duty of discovery and of warning of defects was in the first instance upon them and upon the telegraph operator, both on account of the nature of their employment, and on account of the fact that they had seen and had experienced the storm, while Roddy had not. Roddy's primary duty was to operate his engine and draw his train with reasonable care. The sectionmen and the telegraph operator had been in the midst of the storm. They knew its violence; they had the best opportunity to judge of its natural and probable effects. He had come from a region beyond that traversed by the heavy rain, and had not experienced it. It had passed over Elma an hour before he arrived in its vicinity and half án hour before he stopped at New Hampton, and he had received no warning of danger from the station at Elma, where the men in charge of the five miles of roadbed and track south of that station and the telegraph operator were located. The presumption of law and of fact, in the absence of countervailing evidence, always is that servants as well as masters have done their duty. And, while the negligence of the operator and of the sectionmen is no excuse for any negligence of Roddy, the fact that it was their duty to watch. this roadbed and to give notice of any defects in it, together with the fact that when Roddy was within two miles of Elma they had given no notice of danger to him, might well be considered by the jury in determining whether or not a reasonable man in his situation
might not have justly inferred from the silence of the men in charge of this section of track which he was using, either that the storm had not been so violent as to endanger it, or that, if it had been so, the sectionmen had already patroled it and found it free from damage, so that he could safely drive his engine over it without special inquiry, and without stopping and sending a man forward to patrol it. It is not clear to our minds that such an inference and such a course of action would indicate to all reasonable men any lack of ordinary care, much less that it would compel their minds to that. conclusion, and for that reason the evidence in this case fails to convince that the contributory negligence of the plaintiff was conclusively established.
In the consideration and determination of the questions which have been discussed, all the evidence in this case has been carefully read and considered, but no attempt has been made to do more in this opinion than to present its salient points. Many of the material facts were the subjects of contradictory testimony. Fair and rational minds might well draw different conclusions from the facts that were established. The evidence left the issues of negligence and of contributory negligence in doubt, and the court below was guilty of no abuse of judicial discretion in denying the motion for a peremptory instruction and submitting the issues to the jury for decision. No exception to the charge of the court was taken. Thirteen. separate requests for instructions, which cover four closely printed. pages of the record before us, were presented to the court below, and were denied "save as the same may be given in the general charge." Five of these refusals are assigned as error. The requests to which they relate have been critically compared with the charge. of the court, without the discovery of any prejudicial error in the refusal to submit them to the jury. The rules of law embodied in them, so far as they were applicable to the case, and so far as it was the duty of the court to communicate them to the jury, are found in the charge in terms as concise, clear, and expressive as those in which they are stated in the requests of counsel. Where a rule or principle of law is clearly declared by the court in its general charge, it is not error for it to refuse to repeat it in the words of the attorney who requests it. Southern Pac. Co. v. Schoer, 52 C. C. A. 268, 275, 114 Fed. 466, 473, and cases there cited.
One of the most serious complaints of the railway company regarding these requests is that the court refused to charge that the plaintiff must either establish by a preponderance of evidence that the servants of the defendant had actual knowledge of the washout so long before the derailment that by the exercise of reasonable care they could have repaired the track or warned the plaintiff before the derailment, or that he must establish by a preponderance of evidence that the washout occurred so long before the derailment that the defendant or its servants, in the exercise of reasonable care, ought to have discovered it, and that after such discovery there was sufficient time for the defendant or its servants, in the exercise of such reasonable care, to have repaired said track, or to have given the plaintiff the necessary warning of its condition. The statement
contained in this request is altogether too involved, refined, and technical, and it is not the law. If the storm was so violent and the rains so copious before 7 in the evening of the day of this derailment that great damage to the roadbed and track was to be reasonably anticipated from it, the duty was immediately imposed upon the sectionmen to patrol that track and to ascertain its condition. If they had done this, and had discovered a large volume of water flowing over or under the roadbed at the place of the accident which had not then undermined the track, but which constantly threatened to carry out a section of it, it would have been as much their duty to go forward and warn the plaintiff of the danger of driving his engine upon it as it would have been if the washout had actually occurred when they first discovered the danger. And if after they would, by the exercise of reasonable diligence, have discovered and have warned the plaintiff of the imminent danger that the track would be undermined, and before he arrived at the place of the accident the track had washed out, their care would have saved him from injury; while if, in the exercise of reasonable care, they could in this way have accomplished this result, their failure to exercise this care inflicted his injury. The time of the occurrence or of the discovery of the washout was not the sole condition or evidence of the negligence of the servants of the defendant. The violence of the storm, the copiousness of the rain, and the probable effect to be anticipated from them, conditioned the duty of the sectionmen and of the telegraph operator and the question of their negligence, whether the washout occurred long enough before the accident for them to have discovered it and to have given the warning or not, because the storm and the rain which caused the defect in the roadbed gave them warning of the natural results which would follow from them so long before the derailment that they might have discovered the actual condition of the roadbed and have given warning of the danger whether the track was then actually undermined or was only in imminent danger of it.
Error is also alleged because the court did not deliver to the jury the charge upon the preponderance of evidence which is embodied in the long request we have been considering. As, however, the proposed instruction contained two propositions of law, one of which has been found to be unsound, there was no error in the court's refusal to communicate the other. Where a request for an instruction contains two or more propositions of law, one of which is unsound, there is no error in a refusal to grant it. United States v. Hough, 103 U. S. 71, 72, 73, 26 L. Ed. 305; Monarch Cycle Co. v. Royer Wheel Co., 44 C. C. A. 523, 526, 105 Fed. 324, 328.
One of the rules of the railway company in evidence requires the engineer to keep a constant and vigilant lookout, and counsel for the company requested the court to charge the jury that "it was the plaintiff's first and paramount duty while his train was in motion to keep a constant and vigilant lookout along the track, and to take all precautions for the safety of himself and his train that a reasonably prudent man would take under the same circumstances." The court charged the jury that the plaintiff was required to use
due care not only for his own protection, but for the protection of the property intrusted to his charge; that he had to a very large extent the charge of the running of his train; that it was his duty to observe the condition of the road he was passing over, to determine as far as things came under his observation as to his safety; that he had the opportunity to observe the condition and extent of the flood, the condition in which it left the streams and the country, and the roadbed; and that the rules which he was required to observe referred to cases of the kind under consideration, and declared what his duties in such cases were. It then instructed the jury that it was for them to determine from the evidence whether the plaintiff performed the duties which a reasonable man in the performance of his employment, and under the rules which he was required to observe, would have performed, or whether he should have stopped his train and sent out persons ahead at any place for the purpose of ascertaining whether there was danger in the condition of the track resulting from the effect of the storm. The charge of the court here embodies the principle of law referred to in the request, and expresses it in more felicitous language than that used by counsel for the railway company. It called the attention of the jury to the rule which required the engineer to keep a constant and vigilant lookout, and it left the counsel of the company without any tenable ground for the exception to the refusal to grant their request.
The differences between the other requests which were refused and the charge of the court are less striking and important than those which have been noticed. There was no substantial error in the trial of this case, and the judgment below is affirmed.
KUNTZ v. YOUNG.
(Circuit Court of Appeals, Eighth Circuit. July 28, 1904.)
1. BANKRUPTCY-DISCHARGE-FAILURE TO APPLY FOR DISCHARGE IN SUBSEQUENT PROCEEDING.
A failure of the bankrupt to apply in due time for, or a refusal by the court to grant, a discharge from debts provable in proceedings under one petition in bankruptcy, renders the question of the right of the bankrupt to a discharge from those debts in a proceeding under a subsequent petition res adjudicata.
A subsequent proceeding in bankruptcy for the sole purpose of obtaining a discharge which a prior proceeding has conclusively determined that the bankrupt is not entitled to presents no ground for relief, is vexatious and futile, and cannot be lawfully maintained.
3. SAME COURT HAS POWER TO DISMISS AFTER ADJUDICATION.
The District Court has power to dismiss such a proceeding, as soon as it learns its real purpose, under section 2, subd. 15, Bankr. Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3421], although this is after an adjudication in bankruptcy.
1. See Bankruptcy, vol. 6, Cent. Dig. § 690.
An involuntary proceeding in bankruptcy was commenced. The bankrupt made no application for a discharge within 12 months after the adjudication, and failed to comply with an order to pay over to the trustee $6.185.37. While this proceeding was pending the bankrupt commenced a voluntary proceeding in another division of the same court, and applied for a discharge from the same debts scheduled and provable in the first proceeding. Held, the District Court rightly denied the application for the discharge and dismissed the voluntary proceeding.
(Syllabus by the Court.)
Appeal from the District Court of the United States for the District of Minnesota.
William P. Murphy, Halvor Steenerson, and Charles Loring, for appellant.
Frank H. Ewing, E. H. Morphy, and John M. Bradford, for appellee.
Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.
SANBORN, Circuit Judge. May a bankrupt who has failed to apply for a discharge within the 12 months after his adjudication of bankruptcy upon a petition of creditors lawfully maintain a voluntary proceeding in bankruptcy and obtain a discharge from the very debts scheduled and provable in the involuntary proceeding while the latter is still pending? The record in this case is meager, and it discloses nothing relative to many of the motions and adjournments which are referred to by counsel for the respective parties in the briefs. The case must be determined upon the presumption that the rulings of the court below were made after due notice, and were right, unless the record discloses some error. The burden is always on him who challenges the rulings or decree of a trial court, not only to specify errors, but to prove them by the record which he presents to the reviewing court. The error here alleged is the rendition of a decree of dismissal of a voluntary proceeding in bankruptcy and a denial of a petition for the discharge of the bankrupt in this state of the facts: In January, 1899, Oscar Kuntz was adjudged a bankrupt in one of the divisions of the District Court of Minnesota upon the petition of certain of his creditors. In the progress of this proceeding the referee found that in the year 1898 Kuntz was a general merchant in a small village in Minnesota, and that he so conducted his business that between September 18, 1898, and December 27, 1898, a deficit of $8,185.37 arose, for which he failed to account. Thereupon the referee made an order that he should pay over to the trustee of his estate $6,260.37. He paid $75, and no more. The order was never reversed, modified, or obeyed. The bankrupt made no application for a discharge within 12 months of his adjudication, and the involuntary proceeding is still pending awaiting his compliance with the order of the referee. In April, 1903, Kuntz filed a voluntary petition in bankruptcy in another division of the District Court for Minnesota, secured another adjudication of bankruptcy, scheduled the same debts and creditors that appeared in the invol