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that they are domiciled in Porto Rico, notwithstanding that they may have entertained a floating intention to return to Guadalupe at some future period." ·

While the court in another part of the charge instructed the jury that they were to determine whether the intention of the wife to return to Guadalupe was bona fide or not, and that, if it was indefinite and very doubtful-a merely possible intention of returning to Guadalupe she was really a bona fide resident of Porto Rico, thus dealing alone with the intention of the wife, we do not think this instruction could have led the jury to believe that her intention alone was to be considered in determining the domicile of herself and husband.

By their verdict the jury have found that the plaintiffs were not domiciled in Porto Rico, and that the District Court therefore had jurisdiction. Although there is much in the testimony that seems inconsistent with this finding, we cannot say that there was no evidence to support it.

In Chicago & Northwestern Ry. Co. v. Ohle, 117 U. S. 123, 6 S. Ct. 632, 29 L. Ed. 837, which was a case where the question of domicile was submitted to the jury, the court said:

"It is not for us to decide that the jury brought in a wrong verdict under a correct charge, if the record shows, as it does, that there was some evidence to support the finding which was made."

[6] If the jury believed the testimony of the mother and her daughter, they were warranted in finding that both husband and wife were not domiciled in Porto Rico at the time the suit was brought. The question of domicile must be decided upon the particular facts presented in each case.

[7] The court allowed the wife, over the objection of the defendant, to state her intention when she left Guadalupe, and this is assigned as error; the defendant contending that the domicile of the wife was that of the husband and that her intention in going

to Porto Rico was immaterial.

While it is true that the domicile of the wife is that of the husband, yet evidence of the wife's intention, under all the circumstances, was material and proper for the consideration of the jury in determining the intention of the husband as they came together and there was no evidence of any interruption of the marital relation. From evidence of her intention the jury might reasonably infer what the intention of the husband was.

The accident occurred in a suburb of San Juan called Santurce, where San Juan street intersects a highway known as the Carretera. The wife testified that she came out of San Juan street and started to cross the track of the defendant which ran along the Carretera from San Juan to Rio Pedras; that she looked first toward San Juan; that she saw no car coming from that direction, and that she then looked in the direction of Rio Pedras, and saw no car; that she started to cross the track, and was struck by a car coming from San Juan; that her eyesight and hearing were good, but she neither saw nor heard the car; that "it was coming so fast that it did not give her time to cross."

There was conflicting testimony in regard to the rate of speed of the car and also as to the obstructions to the view toward San Juan of one standing where the plaintiff was when she was struck, but it was established by uncontradicted testimony that the place where the accident happened was a dangerous one, being at the intersection of streets in a thickly inhabited part of the city, where there was a good deal of passing over the track.

[8,9] A witness who had been employed as a motorman by the defendant and had run a car by the place of the accident eight times daily, for over 2 years, testified that the usual rate of speed at that place was seven or eight miles an hour, because there was a steep grade approaching San Juan street and because of the intersection of streets and the number of people usually there. This is assigned as error.

The wife had testified that she had crossed the track at this point frequently in going in and out of San Juan street, and the jury could fairly infer that she knew the usual rate of speed at which cars passed there. If they should find that she did, then she had a right to rely upon a car being run at the customary rate of speed and with the usual caution when she attempted to cross the track at that place. There was no error in the admission of this testimony.

[10] The same witness was also asked as to the distance in which the car which struck

the plaintiff could have been stopped if being run at the usual rate of speed at the place of the accident. The witness had testified that, in his service as a motorman, he had run the cars of the company equipped with air brakes for 21⁄2 years, and was familiar with car No. 20 that struck the plaintiff and that, if it was being run at the usual rate of speed, which he had testified

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to be seven or eight miles an hour at the place of the accident, it could have been stopped within three or four meters. The witness from his experience had qualified himself to testify as an expert upon this question, and his testimony was properly admitted, confined as it was to the place of the accident and the car which struck the plaintiff, which the witness had previously run and with whose equipment he was familiar.

[11] There was conflicting testimony as to the distance in which the car was stopped after the accident, and this testimony was admissible as bearing upon its rate of speed when the plaintiff was struck.

gence they were to leave out of their consideration the skill and experience of the motorman. There was no error in refusing this instruction.

[14, 15] The following instruction was requested and denied, and error assigned:

"That the domicile of plaintiff Eugenie Cognet is that of her husband, Alfred Cognet."

Instructions given must be applicable to the facts disclosed by the evidence. No contention was made that the domicile of the wife was not that of her husband. The question presented was whether this couple, under the instructions given by the court, had acquired a domicile in Porto Rico. Hus

[12] Defendant requested the court to in- band and wife came from Guadalupe to struct the jury that:

"There is no evidence in this case that the plaintiff had knowledge of or relied upon any custom of defendant company as to speed and as to the gong."

The refusal to give this instruction is assigned as error.

There was evidence that the wife had passed the place of the accident many times and knew that the electric cars ran by there at frequent intervals. From this evidence the jury could reasonably infer that she knew the customary rate of speed at which cars were run at this point and whether the gong was usually sounded in approaching the intersection of the two streets.

The court could not determine as a matter of law that there was no evidence that she had knowledge of or relied upon a custom of the defendant company as to speed and as to the gong, and there was no error in refusing this instruction.

[13] Error is assigned because the court refused to give the following instruction:

"The court instructs the jury that you are not authorized to take into consideration whether defendant's motorman, Orlando, was competent or incompetent; that the only question to be considered is whether or not he was guilty of negligence on the occasion resulting in plaintiff's injuries." While it is true, as stated in the requested instruction, that the only question for the jury to consider was whether or not the motorman was guilty of negligence on the occasion of the accident, yet, as bearing on the speed of the car and the caution with which it was being operated at this concedly dangerous place, the jury had a right to take into consideration the competency or incompetency of the motorman. The instruction, if given, would be likely to be misleading and cause the jury to understand that in determining the question of negli

Porto Rico together, and in her testimony the wife had stated that:

"We were on the point of returning back again when this accident took place and we had to postpone the return trip."

The court instructed the jury that to give the District Court jurisdiction it was necessary to find that the plaintiffs did not have their domicile in Porto Rico; thus, by the use of the plural, including both husband and wife. It was not claimed that the domicile of the wife was different from that of the husband. Therefore the requested instruction had no application, and was properly refused.

[16] The other assignments of error relate to the merits of the case, involving the defendant's alleged negligence and the plaintiff's contributory negligence upon which defendant grounded its motion for a directed verdict. There was evidence from which the jury could have found that the car which stuck the plaintiff was proceeding from San Juan toward Rio Pedras; that before reaching San Juan street there was a stop designated as "16"; that in the vicinity of this stop there was a curve in the track and, beyond, toward San Juan street, quite a steep grade, down which the car was coming under its own momentum at the time of the accident without giving any warning of its approach; that its rate of speed was greater than that at which cars were usually run at this point; that the motorman had had only about 6 months' experience; that the view in the direction of San Juan from the intersection of San Juan street with the Carretera was obstructed by palm trees and the branches of another tree which extended over the sidewalk and out toward the track; that the nearest rail of the track was within about a meter of the sidewalk on the Carretera along which the plaintiff was proceeding; and that as

she started to cross the track she looked first toward San Juan and then toward Rio Pedras, and was struck as she was looking in that direction. This, in substance, was her testimony, and in this she was corroborated by several eyewitnesses, who testified that no warning was given of the approach of the car; that they saw her look, as she testified, before she attempted to cross the track; that the car was running down the steep grade under its own momentum at a much higher rate of speed than cars were usually run at that point; one of them placing it at twenty or twenty-five miles an hour.

[17] Witnesses for the defendant testified that the bell was sounding and the car was not being run at an unusual rate of speed at the place of the accident; but in determining, as it is our duty to do, whether there was any evidence upon which the verdict of the jury can be sustained we must consider all the evidence in the light most favorable to the plaintiff.

The distance which the car ran after the the plaintiff was struck before it could be stopped indicates that the car was being run at an unusual rate of speed at a place which the conductor of the car characterized as a dangerous one. The rate of speed of the car, whether warning signals were given or not, and whether, under all the circumstances of the case, the plaintiff was guilty of any contributory negligence in not exercising due caution before attempting to cross the track, were all questions for the jury; and, if there was any substantial evidence to sustain their verdict, arrived at by considering conflicting evidence, it must be sustained.

We find no merit in any of the errors assigned, and, as we think that there was substantial evidence to sustain the verdict, the entry must be:

The judgment of the District Court is affirmed, with costs to the defendants in error in this court.

2. Railroads 52, New, vol. 6A Key-No. Series-Director General not liable for railroad's contracts for services unless adopted.

The Director General of Railroads, on taking possession of a railroad under authority of Transportation Act Feb. 28, 1920, § 206 (Comp. St. Ann. Supp. 1923, § 100714 cc), was not bound to carry out the contract of the company for services in buying coal for it on commission, and no action for its breach could lie against him unless he adopted it.

3. Railroads 52, New, vol. 6A Key-No. Series-Director General entitled to reasonable time to reject or adopt railroad's contracts.

The Director General, on the government's taking over the railroads, had a reasonable time to determine whether he would adopt or reject contracts for services, and in determining what is a reasonable time the existing emergency, and immensity and number of questions to be decided, and the fact that he had the benefit of the services and advice of the company's officials should be taken into account.

On Application for Rehearing. 4. Appeal and error 237 (6)-Whether at close of trial there is substantial evidence to sustain finding held question of law for court.

Whether, at close of trial, there is substantial evidence to sustain finding in favor of one of parties is question of law, and where trial is before jury, question is reviewable on exceptions to ruling on request for peremptory instructions, and where trial is before court it is reviewable on motion, which presents issue to court for determination before end of trial.

5. Railroads 52-Director General, receiving coal after repudiating railroad's contract to pay for services in purchasing coal, held liable in quantum meruit.

Where Director General, on government's taking over railroad, repudiated railroad's contract to pay plaintiff 5 per cent. for services in purchasing coal for railroad, but continued to receive coal from plaintiff, who reserved his right under contract, held, that Director General was liable to plaintiff in quantum meruit for value of services.

Woods, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; D. Lawrence Groner, Judge.

Actions by C. Delaney Martin against the Richmond, Fredericksburg & Potomac Rail

MARTIN v. RICHMOND, F. & P. R. CO. et al. road Company, and against James C. Davis,

(Circuit Court of Appeals, Fourth Circuit.

February 5, 1924. On Rehearing,
September 29, 1924.)

No. 2149.

I. Railroads 52, New, vol. 6A Key-No. Series-Company not liable on contracts for services performed during federal control.

A railroad company is not liable for services rendered under contract during the period of federal control.

Director General of Railroads, as Agent, under Transportation Act Feb. 28, 1920, § 206. Judgments for defendants, and plaintiff brings error. Judgment against defendant first named affirmed, and against defendant last named reversed.

Frank E. Wood, of Cincinnati, Ohio, and Robert E. Scott, of Richmond, Va. (D. E. French and French, Easley & Easley, all of

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Bluefield, W. Va., and Scott & Buchanan, tor General to deliver to the railroad its of Richmond, Va., on the brief), for plain- fuel coal supply until the end of the federal tiff in error. control, receiving therefore the cost price of the coal and expenses of purchasing, and $200 a month compensation. In making this agreement, however, Martin again expressly

E. Randolph Williams and Wirt P. Marks, Jr., both of Richmond, Va., for defendants in error.

Before WOODS, WADDILL, and ROSE, reserved his rights under the original conCircuit Judges.

WOODS, Circuit Judge. In these consolidated actions against James C. Davis, Director General of Railroads, and the Richmond, Fredericksburg & Potomac Railroad Company, the plaintiff, C. Delaney Martin, claims $39,041.14 damages for breach of contract and also on quantum meruit for services performed. The question is whether the District Judge was right in directing a

verdict for the defendants.

The facts are not in dispute. On July 1, 1917, the plaintiff, Martin, contracted with the Richmond, Fredericksburg & Potomac Railroad Company to supply for three years all its fuel coal, buying it at his own expense and on his own credit, and delivering it to the railroad at cost and a commission of 5 per cent. He furnished coal under the contract to the entire satisfaction and advantage of the railroad company until December 28, 1917, when under the act of Congress (Act Feb. 28, 1920, § 206 [Comp. St. Ann. Supp. 1923, § 100714cc]) the railroad was taken over by the President through the Director General. Thereafter until June 4, 1918, Martin continued to deliver all fuel coal for the railroad company under the orders of the Director General. Deliveries and payments were made under the terms of the contract. On June 5, 1918, the Director General, through the president of the railroad company, notified Martin that the coal contract would not be recognized by him and that, unless Martin would deliver the coal at the regular price without the commission, some other arrangements would be made to supply it. On the same day Martin answered, protesting against the injustice done him in the annulment of the contract, but saying: "I will continue to purchase coal for you as suggested in your telegram, without prejudice to my rights under

the contract."

The Director General by letter and in person several times reiterated his repudiation of the contract. After June 4, 1918, he continued to receive the coal from Martin, but paid therefor only the cost price and expenses, without the 5 per cent, commissions or other compensation until January 1, 1919. On that day Martin agreed with the Direc

tract. The agreement with the Director General provided that if Martin should establish his right to the 5 per cent. commission according to the contract, the amount found to be due him thereunder should be credited with the expenses and the $200 per month paid him under the new arrangement. When the government released control on March 1, 1920, the railroad company immediately resumed with Martin the relations established by the contract of July 1, 1917, and paid him commissions accordingly for four months, the remainder of the contract period.

The claim of the plaintiff is for 5 per cent. commissions for services rendered in purchasing coal from June 5, 1918, when the Director General gave notice of his refusal to adopt the contract of July 1, 1917, to March 1, 1920, when the railroad company was returned to its owner, less the sums paid him for expenses and compensation.

[1,2] Evidently, the railroad company is not liable for services rendered by Martin after the government frustrated the contract by taking over the property. Missouri Pacific Railroad Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. It is equally clear that the Director General, taking possession under the authority of the federal statute, was not bound to carry out the contract of the railroad company with Martin, and that no action for its breach would lie against him, unless by his action he adopted it.

Omnia Commercial Co., Inc., v. United States, 261 S. W. 502, 43 Sup. Ct. 437, 67 L. Ed. 773. He had, however, the option of adopting the contract with Martin under the provisions of subdivision (h) of section 4 of the contract between himself and the railroad company.

Martin's right to recover must stand or fall on the issue whether the Director General adopted the contract of July 1, 1917, between Martin and the railroad company. It will be observed that throughout all of the correspondence and negotiations Martin stood on his rights under the contract of March 1, 1917, protesting always against the injustice of not carrying it out, when he had abandoned his former business to enter into it. His consent of June 5, 1918, to go on purchasing coal without receiving com

missions, and his agreement of January 1, 1919, to perform the service for a compensation of $200 a month and expenses, were expressly without prejudice to his rights under that contract. But there was no reservation of any other right. If he cannot recover, therefore, under the contract, he cannot recover at all.

[3] We do not think that it can be said there was no evidence of adoption of the contract by the Director General. For five months from December 28, 1917, to June 4, 1918, he and his agents in charge of the railroad received coal and made payments in accordance with the contract. It is true that the Director General had a reasonable time to obtain the information necessary for him to make an intelligent election whether he would adopt or reject the contract. Missouri Pac. R. Co. et al. v. Ault, 256 U. S. 554, 562, 41 Sup. Ct. 593, 65 L. Ed. 1087; Quincy Missouri & Pacific R. Co. v. Humphreys, 145 U. S. 82, 12 Sup. Ct. 787, 36 L. Ed. 632; United States Trust Co. v. Wabash Western Ry. Co., 150 U. S. 287, 299, 14 Sup. Ct. 86, 37 L. Ed. 1085.

In deciding what was a reasonable time, the existing emergency and the immensity and number of questions to be decided by the Director General are to be taken into account; but it is also to be taken into account that the Director General had the benefit of the services and opinion and advice of the President, Superintendent and General Counsel, who were performing the functions of their respective offices for him and who were thoroughly familiar with Martin's contract and services. The question decisive of the case, for the determination of the jury, was, therefore, whether under all the circumstances the Director General, by acting under the contract and receiving its benefits for five months, should be considered to have adopted it. If the Director General gave notice within a reasonable time of his election to reject the contract, the plaintiff cannot recover. If, on the other hand, the Director General received the benefits and made payments under the contract for a longer time than was reasonably necessary for an intelligent election, then he should be held to have adopted it. This issue, we think, should have been submitted to the jury.

If both parties had asked for a directed verdict and nothing more, then the finding of the District Judge on the issues would be binding on both. Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654; Empire State Cattle Co. v. Atchison, Topeka

Sante Fé R. Co., 210 U. S. 1, 28 Sup. Ct. 607, 52 L. Ed 931, 15 Ann. Cas. 70; Sena

v. American Turquoise Co., 220 U. S. 497, 31 Sup. Ct. 488, 55 L. Ed. 559. Plaintiff asked for a directed verdict, and in refusing it the District Judge, without request, directed a verdict for the defendant. The authorities do not go to the extent of holding that a request by one party for a directed verdict is a submission of all issues to the court.

The judgment is affirmed in the action against the railroad company, and reversed in the action against the Director General.

On Rehearing.

WADDILL, Circuit Judge. This case, in which there was a decision rendered on the 5th day of February, 1924, is now before the court upon application for rehearing filed by both parties. The facts and history of the case are fully set forth in the opinion already filed, and need but little elaboration.

Briefly, on the 7th of July, 1917, plaintiff in error contracted with the Richmond, Fredericksburg & Potomac Railroad Company to supply for the period of three years all of its fuel coal, he to buy at his own expense and on his own credit, and to deliver such coal to the railroad at cost and a commission of 5 per cent. The coal was furnished under the contract to the railroad until December 28, 1917, and the plaintiff in error paid therefor. On that day the railroad, under an act of Congress, was taken over by the President of the United States through the Director General of Railroads. Thereafter, until the 4th of June, 1918, coal was delivered and paid for under orders of the Director General upon the contract terms.

On the 5th of June,

1918, the Director General notified plaintiff in error that the contract would not be further recognized by him, and that, unless the coal could be delivered at the regular price without commissions, some other arrangement would have to be made to supply the same. On the same day, plaintiff in error protested against the injustice done him in the attempted annulment of the contract, saying: "I will purchase coal for you as suggested in your telegram, without prejudice to my rights under the contract." The Director General, though repudiating the contract, nevertheless continued after June 4, 1918, to receive coal thereunder, paying only the cost price and expenses, without the 5 per cent. commission or other compensation until January 1, 1919. that day, plaintiff in error agreed with the Director General to deliver coal until the end of the federal control, receiving therefor

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