gas coming out which he did not know of, that there would be a duty on the part of the defendant company to communicate any knowledge which came to its managing officers, or the superintendent or the foreman at work near there, or whoever was charged with the inspection of the mine, to communicate the knowledge immediately, or as soon as it could be, to the plaintiff. The duty of furnishing material and additional help, and of furnishing intelligence of the plaintiff in the situation in which he claims he was placed, carries with it a right to have time and opportunity to perform that duty, and the defendant would not be chargeable for any wrong in the matter, if it failed to furnish materials or men, to give information instantly. It would only be chargeable for the failure to do those things promptly, and that means as quick as men of prudence and having due regard for the safety of others could act. Though you should find that the plaintiff gave notice to the foreman that the roof of the mine in the airway at breast 25, 27, and 28 leading to breast No. 28 was not safe and liable to fall, owing to the insufficient timbering, the defendant would not be liable for not strengthening and not adequately supporting the roof until it had reasonable time and opportunity to do so; and if you believe, before such reasonable opportunity had been afforded to the defendant, the plaintiff voluntarily went back into the mine and exposed himself to the dangers resulting from the roof giving way, which he knew or supposed to be imminent, he cannot recover because he voluntarily assumed the hazard; and this would more particularly be the case if you find from the evidence that the plaintiff was the head timberman in that part of the mine where that accident occurred, concerning which he gave notice, and that it was a part of the plaintiff's employment to place timbers and keep them in proper position."

I do not understand, as is contended by the learned counsel for the defendant in error, that the court there instructed the jury that the dangers must have been so obvious and threatening that a reasonably prudent man would have avoided them before the plaintiff in error could be properly charged with contributory negligence or the assumption of risk. It is true that the court in one part of its lengthy charge told the jury that "the dangers and defects in the mine, that to the eye of the operator or foreman and superintendent portend unnecessary and unreasonable risks and great danger, may have no such significance to the laborer or miner, who has not the knowledge or experience which the operator must have in the operation of his mine, unless a reasonably intelligent and prudent man would, under the circumstances, have known and apprehended the risk which certain conditions indicated; the dangers and the defects must be so obvious and threatening that a reasonably prudent man would have avoided them, in order to charge the workman with contributory negligence or the assumption of the risk;" and also instructed the jury that "the plaintiff, in accepting employment from the Black Diamond Coal Mining Company, and proceeding to work, was not compelled to know or investigate its modes of business or methods of operating its mines, and did not assume any of the risks or dangers resulting from the methods of mining used by the defendant, save and except such risks and dangers which were obvious and apparent, and the perils of which were apparent to the mind and understanding of a reasonably prudent man in his position." But the instruction of the court herein first quoted was, as stated by the court, specifically given to meet the contention on the part of the plaintiff that the mine foreman had been by the plaintiff informed of the impending danger, and of the necessity for more men and more timbers with which to make the place where the accident oc

curred safe, and that the plaintiff returned to work at the place of the accident at the request of the foreman, and upon his promise to send him the required men and timbers.

Without reference to what a reasonably prudent man would have done situated as the plaintiff in error was, the specific instructions of the court given in respect to that contention were, in one place, to the effect that the plaintiff, in voluntarily going back to his place of work with the knowledge which he himself had communicated to the foreman, and relying upon the latter's promise to furnish the required men and timbers, assumed "the extra hazard of the dangers. which existed in his own mind—that is, dangers which in his own mind he knew or believed to be imminent-and the defendant would not be liable for an accident resulting in his injury from a danger which he himself believed was imminent, and which he voluntarily exposed himself to, unless that danger was enhanced by a failure on the part of the foreman to keep his promise to send materials and men to his assistance promptly"; and, again, that if they found that, before a reasonable opportunity had been afforded the defendant to adequately support the roof, "the plaintiff voluntarily went back into the mine, and exposed himself to the dangers resulting from the roof giving way, which he knew or supposed to be imminent, he cannot recover because he voluntarily assumed the hazard."

These specific instructions, given, as has been said, with reference to the contention of the plaintiff in respect to the principal point in the case, not only omitted any and all reference to the question whether the danger was so imminent that a reasonably prudent man, situated as the plaintiff in error was, would or would not have returned to work upon the promise of the foreman, and remain at it for a reasonable length of time, awaiting fulfillment of that promise, but were, as above shown, to the effect that the defendant would not be liable if the plaintiff himself voluntarily exposed himself to a danger that he himself believed was imminent, unless that danger was enhanced by a failure on the part of the foreman to keep his promise to send materials and men to his assistance promptly; and again, omitting the latter qualification, that the defendant would not be liable if the plaintiff voluntarily went back into the mine and exposed himself to the dangers resulting from the roof giving way, which he knew or supposed to be imminent. The rule of law applicable to such a case is, in my opinion, that, if the danger is not so imminent or manifest as to prevent a reasonably prudent man from risking it, upon a promise by the proper authority to provide for the removal of the cause from which the peril arose, an exposure to such danger for a reasonable time, and a consequent injury during that time, while awaiting the fulfillment of the promise, cannot defeat a recovery for the injury. Hough v. Railway Co., 100 U. S. 224, 25 L. Ed. 612; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946.

I am of the opinion that the specific instructions above noticed were erroneous, and were also inconsistent with the general portions of the charge of the court also set out herein. The judgment should therefore be reversed, and the cause remanded for a new trial.

ROBB v. SECURITY TRUST CO.

(Circuit Court of Appeals, Third Circuit. March 9, 1903.)

No. 26.

1. INDEMNITY-RIGHTS OF INDEMNITOR-APPEAL.

An indemnitor, who has been vouched to defend in a suit brought against a surety whom he has agreed to indemnify, is entitled, at his own expense and charges, to fully defend such suit, and to conduct in good faith the whole litigation from beginning to end. Such litigation, in our opinion, includes the right to prosecute; under the laws and practice of the jurisdiction in which the suit is brought, an appeal from, or writ of error to, an adverse decree or judgment of the court of first instance. 8. SAME-DISCHARGE OF INDEMNITOR-PREVENTING PROSECUTION OF APPEALQUESTION FOR JURY.

An indemnitor of the S. Co., surety on a forthcoming replevin bond, was notified to defend an action thereon, which he did. After an adverse judgment it was agreed that a writ of error should be sued out, and the indemnitor made arrangements with a surety company satisfactory to the S. Co. to execute the necessary bond. During the 10 days within which the bond could be filed and the supersedeas obtained, the S. Co., with knowledge, acquiesced in the arrangements, and on the last day on which the bond could be executed a bond properly drawn and executed by the surety company was presented to the S. Co. for its signature, according to the uniform practice, when it for the first time refused to execute the bond or continue the litigation. The indemnitor sued out the writ of error in the name of the S. Co., without a supersedeas, to which the S. Co. subsequently objected, and, after paying the judgment appealed from, notified the indemnitor that, unless further security was given, it would move to dismiss the appeal, whereupon the writ of error was discontinued by the indemnitor. Held, that whether such facts showed an unjustifiable interference by the S. Co. with the indemnitor's right of appeal, sufficient to discharge the indemnitor, was for the jury. 8. SAME EVIDENCE.

Where, in an action against an indemnitor to recover a liability of the surety on a forthcoming replevin bond, defendant claimed that the surety's acts in preventing an appeal from the judgment against the surety on the bond were influenced by the fact that the surety's directors were interested in the enforcement of the judgment in replevin, and that such judgment was for their use and benefit, evidence as to who the surety's directors were, and who were the real parties interested in the judgment, was admissible.

Acheson, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the District of New Jersey.

For opinion below, see 116 Fed. 201.

Robert H. McCarter, for plaintiff in error.

John F. Harned, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY, Circuit Judge. This is a writ of error to the Circuit Court of the United States for the District of New Jersey. The Security Trust Company, the defendant in error, brought an action in contract in that court, against Robb, the plaintiff in error. The action was founded on a bond of indemnity given by Robb to the Security Trust Company, to save it harmless, etc., in becoming surety in a property

bond given in a replevin suit, brought in the Supreme Court of the state of New Jersey. The record discloses the following facts:

In the month of June, 1897, the Ft. Wayne Electric Company brought an action of replevin against the Franklin Electric Light Company, at Cape May, to recover goods sold by the plaintiff to the defendant, under a claim of title reserved by the contract in the vendor until full payment was made. Robb, the plaintiff in error, in behalf of the defendant in the replevin suit, procured the Security Trust Company, the defendant in error, to become a surety in a forthcoming property bond to the sheriff, by which the defendant in the replevin suit was allowed to retain possession of the goods replevied, pending the suit. The plaintiff in error, Robb, indemnified the Security Trust Company against loss, by reason of becoming surety, as aforesaid, in and by an indemnifying bond. The action of replevin resulted in a judgment in favor of the plaintiff, based upon the plaintiff's ownership and right to possession of the property. Suit was then commenced against the Security Trust Company, as surety in the replevin bond, by the Ft. Wayne Electric Company. The Security Trust Company duly notified the plaintiff in error, Robb, to appear and defend the suit as its indemnitor. Pursuant to this notice, Robb appeared by his counsel, and conducted the litigation with the assistance of, but without expense to, the trust company. A protracted trial resulted in a verdict in favor of the plaintiff in replevin and against the Security Trust Company, and judgment was entered inthe Supreme Court, upon said verdict, against the trust company, on the 22d day of January, 1901, for the sum of $14,621.88.

Under the law and practice of New Jersey, this judgment was subject to review by a writ of error, at any time within three years from its date. If, however, it was desired to prevent the issuing of an execution and recovery thereon, it was necessary to file, within 10 days from the date of judgment, a bond with surety to prosecute the writ with effect. By the statutes of New Jersey, such bonds could be executed jointly with the surety by the plaintiff in error, or any substantial person for him. The uniform practice appears to have been, that the plaintiff in error executed the bond with the surety. There is testimony tending to show that the secretary, or other executive officer, of the defendant in error-the Security Company, who actively co-operated with the indemnitor at the trial, gave him to understand all through the litigation, as well as expressly promised, that in case of an adverse result in the suit against the Security Company, a writ of error would be sued out, to be prosecuted by and at the expense of the indemnitor in the Court of Errors and Appeals of the state of New Jersey. That pursuant to such understanding, upon the entry of the judgment in the court below, the indemnitor, at his own expense, sued out a writ of error in the Court of Errors and Appeals, in the name of the said Security Company, and proceeded to have drawn up a bail bond with a proper surety, to wit, the City Trust Company of Philadelphia, in order to obtain a supersedeas, as provided by law in that behalf. The testimony also tends to show that the president of the trust company designated the said City Trust Company as a surety satisfactory to him, and promised to

complete the bail bond with that company as surety, so that it might be filed within the 10 days necessary to obtain a supersedeas. The testimony also tends to show that, in the interval between the entry of the judgment, on the 22d day of January and the 31st of that month, communications were had between the president of the Security Trust Company, the defendant in error, and the representative of the plaintiff in error, in which the information was given that arrangements had been made with the said City Trust Company to go on the bail bond as surety, and that this information was acquiesced in as in accordance with the general understanding between the parties. It is not disputed that $144 was paid by the plaintiff in error, Mr. Robb, to the said City Trust Company, as its charge for becoming surety in the supersedeas bond, and that Mr. Robb arranged also to indemnify the said company against loss. There is testimony tending to show that the counsel for the plaintiff in error, relying upon such an understanding with the defendant in error, presented a properly drawn bond, executed by the said City Trust Company, as surety, to the Security Trust Company, the defendant in error, on January 31st, and that not until that day was any notice received by the plaintiff in error, or his representatives or counsel, that there was any objection on the part of the Security Company to executing such a bond. It is in testimony that on that day, the secretary of the Security Company telegraphed from Camden, N. J., to the counsel of the plaintiff in error in Newark, in that state:-"We don't care to continue bond;" and that afterwards, when another representative of the plaintiff in error called at the office of the Security Company in Camden, the secretary of the company said:-"Our board of directors do not care to continue this litigation any further. It is doing us no good;" and that afterwards, a proposition for the deposit of $15,000, or additional collateral security, was made by the Security Company to the representative of the plaintiff in error. As this was in the afternoon of the last day when a bond could be executed for the obtaining of a supersedeas, it is contended by plaintiff in error that it was then too. late to comply with such a request, even if it had been a reasonable or proper one, as it was necessary to file the bond the next day in Trenton, while the parties who were then transacting the business were in Philadelphia and Camden, N. J. Within two weeks, thereafter, the plaintiff in error was notified by the Security Trust Company that execution had been issued upon the judgment in the replevin suit, and that upon the demand of the sheriff, in whose hands the execution was, it had paid the same, and that it would look to him to be indemnified, according to the obligation of his bond. It appears also that the judgment at the suit of the Ft. Wayne Electric Company against the said Security Trust Company, was for the use of John J. Burleigh, a director of the Security Trust Company, and an offer by the plaintiff in error in the suit below, to show that other of the directors of the Security Trust Company were interested in the said judgment against that Company, was denied.

The writ of error, however, which was sued out by the attorney of the plaintiff in error, pursuant to the general authority given by the Security Trust Company, on the 23d of January, 1901, continued.