, 85 FEDERAL REPORTER.
out of of: sale:" . In Re CQDlior; 12: Rich.' Law" 352, it :was held·thatitbe sheriff could only' be 'heldliable for' the,rebt due at the. tilne Of :the levy; for rent becoming due afterwards hejs not liable. 'No further citation of authorities is necessary. By. the terms of the lease in this case, the rent was due and payable on the 1st of December ensuing after the levy. No rent was due and payable on the 18th of October, 1897. Mr. Lewis, therefore, as to the rent accruing after the lstiof.September, but not yet due, Jsnot of the statute. He maybe entitled to charge for the use of the landfor that time, but he is not within the terms or the equity of the statute,. and is :not entitled to the retention of the proceeds of the 'sale of the rock for his security. . It is urged that this rock is the 'property of Mr. Lewis; and that he is entitled to hold it until the royalty is paid.· But, after full argument, it has in this case been decided that Pinckney was not operating under a license to dig the rock of-Mr. Lewis; on the contrary, that he held under a, demise of all the. could dig and mine out of this land ina of years. When so dug. and mined, and separated ·from the freehold, it became and was his own absolute property. For this Mr. Lewis received $e quarterly. installments by way of rent. or royalty. The lien for rent due and unpaid depends for its existence upon the fact that the rock was the property of Pinckney. It is that the receiver pay to the petitioner, out of the proceeds of sale of the phosphate rock in his hands, the. sum of $2,125.
KANSAS & T. COAL CO. v. REID. (Circuit Court of Appeals, Eighth CirCUit. No. 991. DAMAGES-LIABILITY OF EMPLOYER-NEGLIGENCE.
March 21, 18l.J8.)
Where a workman Is employed to assist In pushing empty coal cars to the desired position for loading coal, and also, after an empty car has been started ,down the Incline towards the dump, to gq ahead to a stationary engine, and start It by the time the car comes under thecbute, a direction from the, foreman to "GQ ahead, aDd start tbe. engine" does not justify him in passing In front of the car, when he could pass to the rear onto a platform, and 1(10 avoid the danger; and In so doing he Is negligent, and cannot recdver for an Injury received In consequence thereof.
.
In Error to the United States Court of Appeals in the Indian Territory. Adiel Sherwood, for plaintiff in error. Ira D. Oglesby, for defendant in error. Before SANBORN, Circuit Judge, and PHILIPS, District Judge. PIIILIPS, pistrict Judge. This is an action for personal injuries, instituted by defendant in error, hereinafter called the "plaintiff," against the plaintiff in error, hereinafter called the "defendant," in the United States court for the Central district in the
KANSAS & T. COAL CO. V. REID.
915
Indian Territory. Plaintiff below recovered judgment for the sum of $5,000, which was affirmed by the court of appeals for the Indian Territory. To reverse this judgment the defendant sued out a writ of error from this court. The defendant, a mining corporation, owned and operated a mine in said territory, known as the "Braidwood," or "Pocahontas," mine, in 1895. At said mine the defendant, for the purpose of loading coal into railroad cars; had an overdump and hoisting apthrough which paratu's, with a screen, operated by a small the coal passed into a chute and into the car under this chute. There 'was a platform extending from beneath this top-work, running west, about 60 feet long, and on an elevation towards the eastern end of this platform stood said engine. Beginning a few feet west Of the engine, the 'platform was about 4 feet above the surface of the ground, and increased in height with the elevation of the ground until at the western end it was about 5 high. Parallel with this platform ran a railroad track, used for switching railroad cars, to run them under said dump or chute for the purpose of loading. The inner, or southern,rail of this track was near to the platroom for the car to pass without striking the plat'form, form. ,'For the purpose of loading the cars with coal, there was another track, called the "slack track," north of, and almost parallel with, the track running along the platform, over which the empty cars were pushed by hand from ,the main track of the railroad 'onto a Y, to a point about 100 feet west of the platform, and were then pushed in the same manner east, onto the first-named track. From the westernmost end of this sidetrack, towards the platform, it was an upgrade, until a point was reached about 40 feet, perhaps, from the western end of the platform, from which point to the dump there was sufficient descent to enable the cars to run down of their own momentum. At the time of the injury in question the plaintiff was in the employ of the defendant, whose duty it was to assist in pushing, and putting in the desired position, the cars as above described. It was also his duty, after the empty car had been started down the incline towards the dump or chute, to get upon the platform, and reach the engine, to start it in motion by the time the car reached the proper position under the chute. This engine was very simple in its method of operation, and was put in motion by opening the valve. On the occasion in question the plaintiff' was af'lsistedby one William Eagly, who was the acting foreman 0'1' superintendent of the mine, and one John Wright, an of the defendant of the 'same grade as plaintiff. After tbe car had reached tbe summit on the side track leading to the dump, so it could run down without the assistance of the plaintiff, Eagly said tohim;'''Runabeada.I;id start the jigger engine" (by which name said engine was known am:ong the employes); or" as some of the witnesses,put it, "Go ahead, and start the engine." Thereupon the plaintiff: went forward, between the two 'tracks, at a pace sufficient get ab'Out30 feet in front of the car, and attempted to reach the ,p1atformby crossing of the descending car,and, wlienheundertook from the ground onto the plat-
1316
85 FEDERAL. REPORTER. . ., '
form, he placed his foot on the end. of a projecting plank, partly concealed by coal dust, from wbiC;h>bis foot slipped, and before he eould SUfficiently recover, in time to entirely reach the top of the platform, the descending car came along, and caught one of his feet between .the platform and an upright standard on the side of the car, whereby his foot was considerabl,Y injured. .. This case presents a stdking illustration of theviceof trying and determining a cause on a rigid theory, rather than the facts of the particular case. The able counseL who brought this action comprethe legal obstacles to a recovery by an employe against the master for injury sustained in performing work of a hazardous nature in the line of his undertaking, where the danger of executing a given order was as obvious to the servant as to the overseer, The {)riginal petition alleged as the ground of recovery that while the plaintiff was engaged in the line of duty in.pushing the empty car, "when said car was moving slowly, he was ordered) commanded, and directed by the defendant to run in front of the said moving car and start a screen engine, etc., and in obeying said command he was forced and compelled to go in front of said moving car on said track, and climb on said platform to start said engine, and while he was crossing said track and trying to get on said platform, being igno:r;ant of the danger, and relying on the superior knowledge {)f the defendant,.and also upon the defendant controlling said car, so as to give plaintiff to obey the command, and get upon the platform out of the way of said car, plaintiff's foot was caught be· tween said moving car and said platform; * * * that at the time of the said injury he was not employed to run, and it was not his duty to run, said screen engine." Apprehensive, doubtless, that it might be held to have been inexcusable foolhardiness in the plain. tiff to run immediately in front of a known moving car, and undertake to getout of the way by mounting a platform four feet high, plaintiff's counsel, before the trial, amended the petition, inserting after the words, "and trying to get on said platform," the following: "Being ignorant of the danger, and relying on the superior knowledge of the defendant, and also upon defendant controlling said car, so as to give plaintiff time to obey the command, and get upon the platform out of the way of said car,"-and by inserting after the words, "screen engine; and w.hose orders plaintiff obeyed," the following: "And in not controlling said car, 'so as to give plain· tiff time to obey said order." And it was upon the facts thus predicated that the court laid the principal stress in its instructions to the jury. The actual factt> were, as disclosed by the evidence, that plaintiff l1admore practical knowledge of the situation than the foreman. For years he. had worked about this coaling s1ation, and was familiar with its tracks and said platform. He had for weeks prior to the accident been employed in the special work of assisting in transferring cars under the coal chute, and in going to the engine on the platform. to start it after the car bega.n its descent down the grade. He knew as much .asanybo,dy the momentum of such a. car in passing along the ,platf()rm, and how the car was managed its descent. the elevation of the
XAKSAS & T. CQAL CO. V. REID.
917
platform and the manner of reaching it from the ground. He had often performed the work of leaving the car as it started down the incline, and reaching the engine to put it in motion for the purpose aforesaid. He knew the customary method of accomplishing thi8 work. The evidence was tbat the usual course in reaching the platform was by either passing to the rear of the moving car, and climbing onto the platform, or by getting on the rear end of the car, and stepping therefrom to the platform, and then hUITJ'ing on to the engine. What was there in the order given by Eagly on this occasion different from what he had previously given? There is nothing in the record from which it. can be affirmatively 'inferred that any set phrase had been employed previously by the foreman or superintendent to indicate how the plaintiff should reach the engine after he quit pushing the car. All that is claimed to have been Mid by Eagly was, "Run ahead and start the jigger engine;" or, as some of the witnesses stated it, "Go ahead, and start the en¢.ne." As the path he should travel, or manner of reaching the engine, was not indicated by the order, further than that plaintiff should go ahead for that purpose, the clear import was that he should reach his engine, so as to put it in motion by the time the car reached its position under the coal chute. There was no order or direction to run in front of the car. The order could have been as well executed in the customary manner by passing to the rear of the car, and mounting the platform, or by getting on the rear end of the car, and stepping from it onto the platform. By either of the latter methods he could as easily and timely have reached the engine by outrunning the car as by the course be adopted of outrunning the car so as to pass in front of it. The danger of the course he took was just as obvious to him as to the foreman. Not only was this true, but he was especially familiar with the difficulties of reaching the engine, and how it was to be accomplished in going the way he did. No rule of law is better settled than that the master is at liberty to conduct his business in his own way, notwithstanding there may be other less hazardous methods. And he may be responsible for injuries resulting from exposing a novice to hazard in working at a particular place without warning, or when such novice, by reason of age or lack of knowledge, is unduly ordered into a position of danger. But, when the servant "knows the danger attendant upon such manner of prosecuting the work, he assumes the risk of the more hazardous method." Reed v. Stockmeyer, 20 C. C. A. 381, 74 Fed. 188; Tuttle v. Railway Co., 122 U. S. 189, 7 Sup.Ct. 1166; Railway Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530. Where the servant possesses the actual knowledge of the risk, obtained .both before and during his engagement of service, he is not merely required to exercise greatel'vigilance to avoid the danger, but he assumes the risk. Peirce v. Clavin, 27 C. C. A. 227,82 Fed. 550. The only ansWer made to this by plaintiff's counsel is that there was evidence on which the jury might reasonably have inferred that the foreman, Eagly, saw the course the plaintiff took to reach the platform, and, as he did not warn him to stop, the plaintiff was justified in proceeding under tile the foreman would take such
9,18
85 :FEDERAL REPORTER.
means' at hiB command as would prevent the car from running the plaintiff down while attempting to 1'each the platform. There are several replies to' this contention. In the first place, the plaintiff was familiar with the manner in which thecal' was managed in :its descent. He knew 'that the custom was for one of the attend· ants, when the car started down the incline, to get on the rear end, where the brake was, for the purpose of setting the brake in time to stop the·, car when it reached the proper position under the chute. He knew that, as that was the usual office of the brakeman, the latter's attention would be wholly engaged in ascertaining when to put on the· brake to effect the arrest of the car. He;,testified that just as he started his run he heard Eagly'give the ass.istant,Wright, the usual direction to get on the ear. Ashe heard no other 'direction, he had no rightto expect of this brakeman the performance of 'ans other duty, or to'keep any other lookout, than such command indicated, or the usual'course of ,action warranted'. Second, under such circumstances, there waS mt>rereason for the foreman to assume that, as plaintiff was well acquainted with the office of the brakeman and the situation, he wusnot proceeding in reliance upon'thefdreman taking care of him as if he were a child or lin: imbecile. The foreman had a right to assume'that thepfaintiff, in "V'oluntarily assummg that course to reach theengine,knew how to take' care of himself. Be had a right to assume that, consciotlS of his dangel',' and familiar with the surroundings, he would hinHlelf keep a sharp lookout fOl'Ahe approach of the 'descending car and thereby protect himself. ' Third, even if plaintiff had. warrant for believing that the brakeman, on the rear end of the descending car might be able to protect him against mishap, this ihno 'degree lessened the obligation whicb'the law imposed upon him to exercise the greatest vigilance when in; a position of known danger; and, if he neglected: such precaution, his own neglect contributed directly to his injury and exonerated the master. Banking Co. v. BraMley (Ga.) 20 S. E. 98;: Railroad Co.; V. 'Jones, 95 U. S. 439; 'Cowles v. Railway Co. (Iowa) '71 N. W. 580. The plaintiff admitted in his cross-examination that, in passing in front of the car to the platform, he did not even look towards the car to observe its distance from hIm. Had he been stricken down on the track under such condition, no court would permit him to speak of the culpability of the master. Elliott v. Railway Co., 150 U. S. 245-248, 14 Sup. Ct. 85. The brakeman, Wright, testified that, from his position at the brake, he could not see the plaintiff in passing in front of the car, and did not observe him until the 'accident. . But there is still another view of this case, equally fatal to the theory of the duty of the brakeman to have kept a sharp 100k()Ut for plaintiff's protection. It was conceded by his counsel 'in argument at this bar, and confirmed by the evidence, that, when the plaintiff stepped in front of the car, the car:was 30 feet dIstant from him. The foreman, therefore, had the right, 'to aSlSume, wb'at the event established, that the plaintiffhadainple time to efl'eeta crossing and reach the top of the platform before there was any reasonable probabut for the extraordin.ary bility of being overtaken by the car, i accident oHM plaintiffsteppiirgon tile, plank, and slipping
KANSA;S& 'T.tlOAL CO'V'. REID.
tberefl'om, when'in the' act of sprihging onto' platform, the injury would not haveocaurred. I The only su.ggcstionmade to parry the force of this faet is that; if,the brakeman had bei.'il warned to keep a lookout.for the plaintiff, he might have arrested the motion, of the ()arin time to,have The physical facts, h.owever, absolutely preclude s1)ch inference. Theplaintiff'sJoWll' evidence shows that, notwithstanding he made his second attempt with such quickness of energy'as the recognized peril of his situation inspired, yet the car was on him before his feet had entirely cleared the edge of the platform.. BoW; then, was it possible for the brakeof the plaintiff, by any exertion at man, between the fall his command, to have turned arid set the brake, so as to have stopped the car ona descendinggradeil1stantaneously? A jury has no provo ince to go entirely out of the realm of reason in search of a verdict. Such an extraordinary occurrence, resulting from such an unanqcipated incident, must 1::le put in the chapter, of accidents. Bad plaintiff attempted to reach the platfol'Il;lby means of first going onto the rear end of the car, his foot, perchance, might have slipped from the sideboard of the car and been mashed in tlie same manner. Could it, under such circumstance, beheld that the'defendant would belilible for injuljr Carried to'itsibgical sequence, such a.doctrine would make the master the absolute insurer of the servant against all the casualties incident to, and inseparable from, the character of the;wQrk, which the servant with full knowledge of.the situation had voluntarily engaged to perform. ' The trial court seems to have had some proper conception of the law applicable to this case, for in one of its instructions it told the jury that if the plaintiff, in attempting to go ahead on the track, failed, in crossing the track, to exercise that car.e which a reasonably prudent man would have done, "by looking out for the approaching car, or urudent Iillinwould have by doing any other act which a dOIJ,e under: the circumstances, then you should find for the defendant." Buf he extracted 'the virtue of this declaration of law by immediately following it up by saying to 'the jury that it was for them to determine "whether croosing the track under those circumstanotheract,was a failure to exercise the ces, without looking (?are which a reasonably prudent man would have exercised under such circumstances. If you find that he did all that a reasonably wouldha'\;e done un,9.eI' those circumstances, then he prudent would not be preclUded from reqovery/' Thus the favorable bequest was taken away by the oodiciL It afforded the jury of the the opportunity for which the verdiet warrants us in saying it was anxiously looking. , . ' " ' The, concise statement of the ,rule,Qf practice, made by Mr, Justice Brewer, in Elliottv. Railway Co., supra, isa fit conclusion to this opinion: ' ' "It is true tbatquestlons of negligence 'and eontributory negligence are, oMI· narlly.questionsof fact, to be passed upon by' a jury; yet, :when the Undls· puted ,evidence is so conclusive that the cOUI'twouid becompeHed to set aside a Verdict retultllM in opposition to it It may withdraw the case from the consider· ation of,the jpry, and diracta verdict/' , ·. , ;;.,;
920
.85 FEDERAL REPORTER.
Therefore, the instruction asked by defendant at the conclusion of the evidence, directing the jury to return a verdict for the defendant, should have been given. The judgment of the court of appeals, as also that of the United States court for the Central district in the Territory, is reversed, and the case is remanded, with direction for further proceedings in conformity with this opinion.
ROGERS v. MOORE. MOORE v. ROGERS· ·(Circuit Court of Appeals, Fifth Circuit. No.GOS. 1. MORTGAGES-DISTRIBUTiol" OF PROCEEDS.
March 29, 18lJ8.)
:When several notes glten by the same debtor, growing out of the same transaction, and all due'and payable, are secured equally by a mortgage, and there Is a judicial .foreclosure on all the notes, the proceeds of the sale should be. credited pro rata on the notes. Though the purpose of the mortgagor !tnd mortgagee, In getting the inof two of a series of notes secured by a mortgage, Is to grant addltionalsecurlty outside of the mortgage, the Indorser not being a party to such understanding, his' obligation cannot be extended by parol evidence, but Is measured by the notes he indorse(J, and he Isllable only for the balance due on such notes after they have been credited with pro rata share of proceeds.
2.
SAME..,...LIABILITY OF SURETY.
In Error and Cross Error to the Circuit Court of the United States for the Eastern District of Louisiana.. In December; .188S, by notarial act, John S. White, of New Iberia. La., purchased from Sherman Hogers a certain, plant&tlon In the parish of Iberia, this state, for' the price of $35,000,. paying $10,00(\ i cash, and for the balance giving five promissQry notes, each for the sum of $5,000, secured by vendor's lien and mortgage, payable, respectively, on the 1st day of January. 1890, 1891, 1892, 1893. and 1894.. At the time of the sale Rogers exacted' additional security for the payment of the two first notes, and same was given by John T. Moore, who indorsed the two notes, of $G,OOO each, maturing. January 1, 1890, and January 1, 1891. The first note was paid. The second forms' the basis of this SUit, wherein the plaintiff claims the face of the note, $5,OOO,with Interest froni December 12, 1888: .The defendant answered, admitting placing his' signature on the note, but that he did so, not as Indorser, but as surety; and denying liability on the grounds that the term of payment of the note sued on had been extended by the plaintiff at the request of the maker, without defendant's knowledge or consent; that the note sued on was secured. by mortgage on certain property of John S. White,' the maker of the note, and at the time the said note became due the property was of ample value to pay the same if. the mortgage had been enforced, and that defendant could have protected himself against loss In the event that payment had been exacted from hbl1 at that time; that, owing to depreciation In sugar .Iands and plantation prop'erty in th'18 state,. defendant. If held liable. to plaintiff, would be without recourse or recoupment against White, and would suffer loss and injury entirely due to the failure of plaintiff to enforce his rights In due time, and the extension granted by him to said White without defendallt's cQnsent. Thereafter, on May 11, 1895, the plaintiff filed a bill in the circultcourt setting forth his ownership of the four notes given In part payment of the purchase price and remaining unpaid, secured by vendor's lien and mortgage, and. prayed for an order of seizure and sale. Included In thE' fOUl 1J.otes was the one on which this suit had been brought. Executory process Is-