evidence showing guilt beyond reasonable doubt. The only witness there implicating the defendant Sykes was Mrs. Callahan, self-confessed participant in the crime. But from the opinion it appears that Sykes was theretofore a man of good repute, that she was contradicted in her implication of Sykes by Sykes himself and by two others who were confessed accomplices in the alleged robbery, and that at other times the witness had under oath given the details of the crime without in any way implicating Sykes. Nothing appears in that case which, when here applied, conflicts with the foregoing conclusion as to Heitler.

[8] Dolly Shaffner's case is quite unlike Heitler's. Rosensweig did not purport to connect her with any conspiracy to transport Rosie Frameovitz in interstate commerce. Rosie made two trips to Gary, about three weeks apart, the first time remaining only a day. But whatever evidence there is of a conspiracy to unlawfully transport her in interstate commerce applies to the first trip, and not the second. All the record shows with reference to Shaffner respecting the first trip is that after Rosie and Epstein reached Gary pursuant to the conspiracy to transport them there, they rode in a taxi from the railroad depot to Shaffner's place in Gary, where Shaffner advanced or gave them money to pay their taxi fare. Surely this taxi ride, wholly within the state of Indiana, did not of itself involve interstate commerce. Nothing whatever appears in the record to connect Shaffner with any plan or conspiracy to transport Rosie from Chicago to Gary, or to show that she had knowledge of any plan or intention on the part of anybody to so transport her in interstate commerce, or that she knew or had reason to believe that Rosie was coming to Gary. As to the second trip, there is evidence that Rosie phoned Shaffner from Chicago that she was coming to Gary, but there is no proof in the record to implicate Shaffner in any conspiracy to transport Rosie from Chicago to Gary at that time.

The judgment against Dolly Shaffner is reversed, and as to her the cause is remanded, with direction to grant a new trial. The judgment against Michael Heitler is affirmed.

(244 Fed. 146)

.

CHESAPEAKE & O. RY. CO. v. NEEDHAM.

(Circuit Court of Appeals, Fourth Circuit. July 5, 1917.)

No. 1510.

1. CARRIERS 298(1)—INJURY TO PASSENGER-NEGLIGENCE-SWAYING Cars. Swaying or lurching of cars necessarily incident to proper operation of fast passenger trains at curves and heavy grades in the track, necessary because of the nature of the country, whereby a passenger is injured, does not charge the carrier with negligence; but the risk thereof is assumed by the passenger.

2. TRIAL

260(8)—INSTRUCTIONS-REQUEST COVERED BY CHARGE-PASSEN

GER'S ACTION.

Relative to error in refusal of requested instruction applicable to issue of fact in passenger's action for injury from fall in fast train, the statements of the general charge to find for defendant unless they believe the injury occurred by reason of negligent operation of the train, and unless they believe it was guilty of some negligence of act or omission, do not cover principle of passenger assuming risk of lurch or jolt which is an unavoidable incident of prudent and skillful operation.

3. CARRIERS 321(1)—PASSENGER'S ACTION—INSTRUCTIONS—UNCERTAIN OR MISLEADING REQUEST.

A requested instruction in passenger's action for injury from fall on fast passenger train caused by lurch or jolt on road in rough country with necessary sharp curves and heavy grades that the jury should find for defendant unless they believe from the evidence that there was a negligent and extraordinary lurch in substance and purpose is not uncertain or misleading, so as to warrant its rejection for faulty expression.

In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.

Action by Abigail Needham against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Herbert Fitzpatrick, of Huntington, W. Va. (Enslow, Fitzpatrick & Baker, of Huntington, W. Va., on the brief), for plaintiff in error. C. Beverley Broun, of Charleston, W. Va. (Malcolm Jackson, of Charleston, W. Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

KNAPP, Circuit Judge. In the brief of counsel for defendant in error, plaintiff below, the material facts are recited as follows:

"On September 3, 1910, Mrs. Needham and her sister-in-law, Mrs. Jackson, boarded the defendant's passenger train No. 3 at White Sulphur to travel to Charleston. They entered the train at the front end of the Richmond sleeper in charge of Conductor Rogers, and sat down on one of the seats of section 2, facing in the direction of the engine. Before the train reached Ronceverte, Mrs. Needham went from the sleeper to the dining car to get breakfast. While she was absent, Mrs. Byrne, of Charleston, and her family entered the same sleeper at Ronceverte. Miss Marie Byrne, a young lady of 18 years, and a little sister, also sat down in section 2, taking the seat opposite the one occupied by Mrs. Jackson, and facing the rear of the train. Mrs. Jackson was suffering severely from car sickness, and needed to lie down.

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"When Mrs. Needham returned from breakfast she took her seat beside Mrs. Jackson, who was obliged to rise up to give her a place. Shortly afterwards the Pullman conductor, to whom she had previously spoken about the matter, came to Mrs. Needham and said she could have another seat in the rear of section 2. She arose and started towards the rear of the train, along the aisle of the car, to reach the seat indicated by the conductor. She had taken but a few steps, when a sudden and violent forward jerk of the car threw her headlong, face down, on the floor of the aisle. She fell the whole length of her body towards the rear end of the car. It was exactly as if the floor of the car had been jerked from under her. She was unable to rise, and had to be lifted and carried to a seat."

The only question of merit arises from the refusal of the court below to give the following instruction:

"The court instructs the jury that unless they believe from all the evidence, by a preponderance thereof, that on the train on which the plaintiff was on September 3, 1910, there was a negligent and extraordinary lurch, which threw the plaintiff to the floor, they should find for the defendant."

[1] For the purposes of this case it may be assumed that injury to a railroad passenger ordinarily creates a presumption that the carrier was negligent and casts upon the latter the burden of showing that the accident occurred without its fault. But a railroad company is not an insurer, and some risks of travel must be assumed by the passenger. In many parts of the country, of which the locality in question is an example, railroads can be built only in the narrow space between a range of mountains or hills on one side and a winding stream on the other. Under these conditions a road must have frequent curves, some of which will be "sharp," to say nothing of heavy grades which often characterize such a right of way. And it is manifest that high-speed trains cannot be run over a roadbed of this kind, however well constructed, without more or less tilting and swaying of the cars, and even something like jolting, as curves are rounded or brakes applied. So far as these motions, by whatever name called, are the necessary results or incidents of proper operation, they cannot charge the carrier with liability to a passenger thereby injured, because they are risks which the passenger assumes.

[2] This goes at once to the principal question litigated at the trial. The plaintiff testified to the accident substantially as set forth in the statement above quoted, and she was corroborated in the main by a young woman friend who was in the same car. Against this was the testimony of six witnesses, three of them passengers who saw the occurrence, to the effect that they did not observe any jolting of the car or other unusual motion. In a word, the plaintiff's proofs would sustain a verdict in her favor, while defendant's proofs show that she has no cause of action. This being the issue in dispute, we are of opinion that defendant was entitled to the rejected instruction; and the more so because the rule of exemption embodied in the request had not been stated or distinctly referred to in the general charge to the jury. True, the jury were told that:

"Unless they believe from the evidence in this case that the injury complained of occurred to the plaintiff by reason of the negligent operation of the train in which the plaintiff was at the time of the accident, they should find for the defendant."

And again:

"Unless you believe from the evidence in this case that the defendant was guilty of some negligence, either some act or some omission in care that was due under the circumstances, you cannot find against it."

But these statements, though unquestionably correct, failed to point out that there are certain risks which a passenger assumes; and nowhere in the charge were the jury told that plaintiff could not recover if the lurch or jolt that caused her fall was an unavoidable incident of prudent and skillful operation. The instruction asked by defendant was peculiarly applicable, as it seems to us, to the facts developed at the trial, and added significance was given to its refusal by the omission of any direct reference to this aspect of the case in the subsequent charge to the jury. We are unable to agree that the request was "covered in general charge."

[3] Some criticism is made of the form of the refused instruction, and its use of the word "extraordinary," but we are not concerned with mere refinements of phraseology. In substance and purpose the request was not uncertain or misleading, and its rejection for faulty expression would hardly be warranted. As we see the case, it was the right of defendant to have the jury instructed that negligence cannot be predicated upon the swaying and lurching movements of a car which necessarily attend the proper and careful operation of fast passenger trains, because such movements are risks which the passenger assumes. As was said in Ozanne v. Illinois Central (C. C.) 151 Fed.

900:

"But whilst the carrier must rigidly perform all of these duties, the natural laws of motion superadd risks which the carrier cannot always guard against, even by the use of the utmost care, and such risks as those the passenger must be supposed to assume. The railroad track cannot always be straight. The transit of trains must be rapid, and the swing of a car is inevitable when the train passes over a curve. This is unavoidable, and the consequences of it is one of the risks we have referred to."

In the circumstances here disclosed we are constrained to hold that it was reversible error to refuse the requested instruction.

Reversed.

(244 Fed. 149)

THE ATKINS HUGHES.

THE FANNY C. BOWEN.

(Circuit Court of Appeals, Third Circuit. June 20, 1917.)

No. 2249.

COLLISION 95(1)—MEETING TOWS-Failure of Tow TO FOLLOW TUG. A collision in Delaware river at night between a schooner in tow on a 70-fathom hawser and a meeting tug and her tow alongside held due solely to the fault of the schooner, which, instead of following her tug, took a wide sheer to port, apparently because her helmsman mistook the lights of the meeting tug for those of her own tug, although the steering light of the latter was burning brightly; it appearing without contradiction that the tugs passed at a safe distance of probably 250 feet.

Appeal from the District Court of the United States for the Eastern District of Pennsylvania; W. H. Seward Thomson, Judge.

Suit in admiralty for collision by Arthur W. Simmons, master of the tug Columbia and bailee of M. D. C. Scow No. 31, against the Atkins Hughes and the schooner Fanny C. Bowen. Decree against the Bowen alone, and her claimant appeals. Affirmed.

The following is the opinion below of Thomson, District Judge, of the Western District of Pennsylvania, specially assigned:

Arthur W. Simmons, master of the tug Columbia, files this libel on behalf of the owners of the tug and as bailee of M. D. C. Scow No. 31, and in behalf of the owner of the said scow, against the steam tug Atkins Hughes and the schooner Fanny C. Bowen, in a cause of collision in the Delaware river. From the evidence the following facts appear:

On the night of July 6, 1914, the tug Columbia was proceeding down the Delaware river, bound for Ft. Mifflin, Pa. She had in tow a squarebowed barge loaded with mud; the scow projecting some 50 feet ahead of the tug. The vessel was keeping to the westward of the channel and making against the tide about 21⁄2 miles per hour. There was a light wind, and the weather was somewhat rainy and cloudy, but not enough to seriously interfere with the lights being seen. The tug and scow had up their regulation lights, all properly set and burning. The master was in the pilot house at the wheel. Near 11 o'clock, as she was approaching the 17-foot lamp buoy in what is known as the horseshoe, the tug Atkins Hughes was seen a considerable distance away, bound up the river. She had in tow, on a hawser about 70 fathoms long, the schooner Fanny C. Bowen, a four-masted sailing vessel without cargo, bound for Philadelphia. The regulation lights were up and burning on both the tug and the schooner. When the tugs were about a mile apart, the Hughes gave a one-blast signal whistle, which was heard and promptly answered by one blast from the Columbia. The Columbia was on the westerly side of the channel, and the Hughes on the easterly side, and when the signals were sounded each tug changed her course slightly to the right, which tended to increase the passing space between them. This position, with reference to the channel, was maintained as the tugs approached, and they passed each other at a safe distance of from 225 to 250 feet; the width of the channel at that point being about 500 feet. As the tugs were passing, the schooner in tow of the Hughes took a heavy sheer to the left towards the Columbia. The captain at the wheel of the Columbia, seeing that the schooner was showing both side lights, red and green, instead of the red only, and that there was danger of collision, blew three blasts of the whistle, being the danger signal, at the same time throwing the helm hard-aport, which swung her bow to the right. When it became apparent that a collision was

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