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that they are domiciled in Porto Rico, not- The accident occurred in a suburb of withstanding that they may have entertain- San Juan called Santurce, where San Juan ed a floating intention to return to Guada- street intersects & highway known as the lupe at some future period.” .
Carretera. The wife testified that she came While the court in another part of the out of San Juan street and started to cross charge instructed the jury that they were the track of the defendant which ran along to determine whether the intention of the the Carretera from San Juan to Rio Pedwife to return to Guadalupe was bona fide ras; that she looked first toward San Juan; or not, and that, if it was indefinite and that she saw no car coming from that direcvery doubtful-a merely possible intention tion, and that she then looked in the direcof returning to Guadalupe she was really tion of Rio Pedras, and saw no car; that a bona fide resident of Porto Rico, thus deal- . she started to cross the track, and was ing alone with the intention of the wife, we struck by a car coming from San Juan; do not think this instruction could have led that her eyesight and hearing were good, the jury to believe that her intention alone but she neither saw nor heard the car; that was to be considered in determining the "it was coming so fast that it did not give domicile of herself and husband.
her time to cross." By their verdict the jury have found that There was conflicting testimony in regard the plaintiffs were not domiciled in Porto to the rate of speed of the car and also as Rico, and that the District Court therefore to the obstructions to the view toward San had jurisdiction. Although there is much in Juan of one standing where the plaintiff the testimony that seems inconsistent with was when she was struck, but it was estabthis finding, we cannot say that there was lished by uncontradicted testimony that the no evidence to support it.
place where the accident happened was a In Chicago & Northwestern Ry. Co. v. dangerous one, being at the intersection of Ohle, 117 U. S. 123, 6 S. Ct. 632, 29 L. Ed. streets in a thickly inhabited part of the 837, which was a case where the question city, where there was a good deal of passof domicile was submitted to the jury, the ing over the track. court said:
[8, 9] A witness who had been employed "It is not for us to decide that the jury as a motorman by the defendant and had brought in a wrong verdict under a correct run a car by the place of the accident eight charge, if the record shows, as it does, that times daily, for over 2 years, testified that there was
some evidence to support the the usual rate of speed at that place was finding which was made."
seven or eight miles an hour, because there  If the jury believed the testimony of was a steep grade approaching San Juan the mother and her daughter, they were street and because of the intersection of warranted in finding that both husband and streets and the number of people usually wife were not domiciled in Porto Rico at the there. This is assigned as error. time the suit was brought. The question The wife had testified that she had crossof domicile must be decided upon the par- ed the track at this point frequently in goticular facts presented in each case. ing in and out of San Juan street, and the
 The court allowed the wife, over the jury could fairly infer that she knew the objection of the defendant, to state her in- usual rate of speed at which cars passed tention when she left Guadalupe, and this there. If they should find that she did, then is assigned as error; the defendant contend- she had a right to rely upon a car being ing that the domicile of the wife was that of run at the customary rate of speed and with the husband and that her intention in going
the usu caution when she attempted to to Porto Rico was immaterial.
cross the track at that place. There was While it is true that the domicile of the
no error in the admission of this testimony.
 The same witness was also asked as wife is that of the husband, yet evidence of
to the distance in which the car which struck the wife's intention, under all the circum- the plaintiff could have been stopped if bestances, was material and proper for the ing run at the usual rate of speed at the consideration of the jury in determining place of the accident. The witness had testhe intention of the husband as they came tified that, in his service as a motorman, he together and there was no evidence of any had run the cars of the company equipped interruption of the marital relation. From with air brakes for 212 years, and was faevidence of her intention the jury might miliar with car No. 20 that struck the plainreasonably infer what the intention of the tiff and that, if it was being run at the husband was.
usual rate of speed, which he had testified 3 F.(20) 21 to be seven or eight miles an hour at the gence they were to leave out of their conplace of the accident, it could have been sideration the skill and experience of the stopped within three or four meters. The motorman. There was no error in refuswitness from his experience had qualified ing this instruction. himself to testify as an expert upon this [14, 15] The following instruction was requestion, and his testimony was properly quested and denied, and error assigned: admitted, confined as it was to the place of “That the domicile of plaintiff Eugenie the accident and the car which struck the Cognet is that of her husband, Alfred Cogplaintiff, which the witness had previously net.” run and with whose equipment he was fa- Instructions given must be applicable to miliar.
the facts disclosed by the evidence. No con There was conflicting testimony as tention was made that the domicile of the to the distance in which the car was stop- wife was not that of her husband. The ped after the accident, and this testimony question presented was whether this couple, was admissible as bearing upon its rate of under the instructions given by the court, speed when the plaintiff was struck. had acquired a domicile in Porto Rico. Hus
 Defendant requested the court to in- band and wife came from Guadalupe to struct the jury that:
Porto Rico together, and in her testimony “There is no evidence in this case that the wife had stated that: the plaintiff had knowledge of or relied "We were on the point of returning back upon any custom of defendant company as again when this accident took place and to speed and as to the gong."
we had to postpone the return trip.” The refusal to give this instruction is as- The court instructed the jury that to give signed as error.
the District Court jurisdiction it was necThere was evidence that the wife had essary to find that the plaintiffs did not passed the place of the accident many times have their domicile in Porto Rico; thus, by and knew that the electric cars ran by there the use of the plural, including both husat frequent intervals. From this evidence band and wife. It was not claimed that the the jury could reasonably infer that she domicile of the wife was different from knew the customary rate of speed at which that of the husband. Therefore the requestcars were 'run at this point and whether ed instruction had no application, and was the gong was usually sounded in approach- properly refused. ing the intersection of the two streets.
 The other assignments of error reThe court could not determine as a mat- late to the merits of the case, involving the ter of law that there was no evidence that defendant's alleged negligence and the she bad knowledge of or relied upon a cus- plaintiff's contributory negligence upon tom of the defendant company as to speed which defendant grounded its motion for a and as to the gong, and there was no error directed verdict. There was evidence from in refusing this instruction.
which the jury could have found that the  Error is assigned because the court car which stuck the plaintiff was proceedrefused to give the following instruction: ing from San Juan toward Rio Pedras;
“The court instructs the jury that you that before reaching San Juan street there are not authorized to take into considera- was a stop designated as "16"; that in the tion whether defendant's motorman, Orlan- vicinity of this stop there was a curve in do, was competent or incompetent; that the the track and, beyond, toward San Juan only question to be considered is whether street, quite a steep grade, down which the or not he was guilty of negligence on the car was coming under its own momentum occasion resulting in plaintiff's injuries." at the time of the accident without giving
While it is true, as stated in the request- any warning of its approach; that its rate ed instruction, that the only question for the of speed was greater than that at which jury to consider was whether or not the mo- cars were usually run at this point; that the torman was guilty of negligence on the oc- motorman had had only about 6 months' casion of the accident, yet, as bearing on experience; that the view in the direction of the speed of the car and the caution with San Juan from the intersection of San Juan which it was being operated at this conced- street with the Carretera was obstructed by ly dangerous place, the jury had a right to palm trees and the branches of another take into consideration the competency or tree which extended over the sidewalk and incompetency of the motorman. The in- out toward the track; that the nearest rail struction, if given, would be likely to be of the track was within about a meter of misleading and cause the jury to understand the sidewalk on the Carretera along which that in determining the question of negli- the plaintiff was proceeding; and that as she started to cross the track she looked 2. Railroads am 5/2, New, vol. 6A Key-No. first toward San Juan and then toward Rio
Series-Director General not liable for rail
road's contracts for services unless adopted. Pedras, and was struck as she was looking in that direction. This, in substance, was
The Director General of Railroads, on tak
ing possession of a railroad under authority of her testimony, and in this she was corrob- Transportation Act Feb. 28, 1920, 8 206 (Comp. orated by several eyewitnesses, who testi- St. Ann. Supp. 1923, § 1007144 cc), was not fied that no warning was given of the ap- bound to carry out the contract of the comproach of the car; that they saw her look, pany for services in buying coal for it on com
mission, and no action for its breach could lie as she testified, before she attempted to against him unless he adopted it. cross the track; that the car was running down the steep grade under its own mo
3. Railroads 512, New, vol. 6A Key-No.
Series–Director General entitled to reasonmentum at a much higher rate of speed than
able time to reject or adopt railroad's concars were usually run at that point; one of tracts. them placing it at twenty or twenty-five The Director General, on the government's miles an hour.
taking over the railroads, had a reasonable time  Witnesses for the defendant testi- to determine whether he would adopt or reject fied that the bell was sounding and the car
contracts for services, and in determining what
is a reasonable time the existing emergency, and was not being run at an unusual rate of immensity and number of questions to be despeed at the place of the accident; but in cided, and the fact that he had the benefit of determining, as it is our duty to do, wheth- the services and advice of the company's offi
cials should be taken into account. er there was any evidence upon which the verdict of the jury can be sustained we must
On Application for Rehearing. consider all the evidence in the light most 4. Appeal and error em 237(6)-Whether at favorable to the plaintiff.
close of trial there is substantial evidence to The distance which the car ran after the
sustain finding held question of law for court. the plaintiff was struck before it could be
Whether, at close of trial, there is substan
tial evidence to sustain finding in favor of one stopped indicates that the car was being run
of parties is question of law, and where trial at an unusual rate of speed at a place is before jury, question is reviewable on excepwhich the conductor of the car characterized tions to ruling on request for peremptory inas a dangerous one. The rate of speed of structions, and where trial is before court it is
reviewable on motion, which presents issue to the car, whether warning signals were giv- court for determination before end of trial. en or not, and whether, under all the circumstances of the case, the plaintiff was
5. Railroads m5/2-Director General, receiv
ing coal after repudiating railroad's contract guilty of any contributory negligence in not
to pay for services in purchasing coal, held exercising due caution before attempting to liable in quantum meruit. cross the track, were all questions for the Where Director General, on government's jury; and, if there was any substantial evi- taking over railroad, repudiated railroad's condence to sustain their verdict, arrived at tract to pay plaintiff 5 per cent. for services by considering conflicting evidence, it must in purchasing coal for railroad, but continued
to receive coal from plaintiff, who reserved his be sustained.
right under contract, held, that Director GenWe find no merit in any of the errors as- eral was liable to plaintiff in quantum meruit signed, and, as we think that there was sub- for value of services. stantial evidence to sustain the verdict, the Woods, Circuit Judge, dissenting. entry must be:
The judgment of the District Court is af- In Error to the District Court of the firmed, with costs to the defendants in er- United States for the Eastern District of ror in this court.
Virginia, at Richmond; D. Lawrence Groner, Judge.
Actions by C. Delaney Martin against the MARTIN V. RICHMOND, F. & P. R.CO. et al. road Company, and against James C. Davis,
Richmond, Fredericksburg & Potomac Rail(Circuit Court of Appeals, Fourth Circuit. Director General of Railroads, as Agent, unFebruary 5, 1924. On Rehearing,
der Transportation Act Feb. 28, 1920, 8 September 29, 1924.)
206. Judgments for defendants, and plainNo. 2149.
tiff brings error. Judgment against defend1. Railroads fm5/2, New, vol. 6A Key-No. ant first named affirmed, and against defend
Series Company not liable on contracts for ant last named reversed.
Frank E. Wood, of Cincinnati, Ohio, and ices rendered under contract during the period Robert E. Scott, of Richmond, Va. (D. E. of federal control.
French and French, Easley & Easley, all of 3 F.(20) 28 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 E. Randolph Williams and Wirt P. Marks, of the coal and expenses of purchasing, and Jr., both of Richmond, Va., for defendants $200 a month compensation. In making this in error.
agreement, however, Martin again expressly Before WOODS, WADDILL, and ROSE, reserved his rights under the original conCircuit Judges.
tract The agreement with the Director General provided that if Martin should es
tablish his right to the 5 per cent. commisWOODS, Circuit Judge. In these consol- sion according to the contract, the amount idated actions against James C. Davis, Di- found to be due him thereunder should be rector General of Railroads, and the Rich- credited with the expenses and the $200 per mond, Fredericksburg & Potomac Railroad month paid him under the new arrangement. Company, the plaintiff, C. Delaney Mar- When the government released control on tin, claims $39,041.14 damages for breach of March 1, 1920, the railroad company imcontract and also on quantum meruit for mediately resumed with Martin the relations services performed. The question is whether established by the contract of July 1, 1917, the District Judge was right in directing & and paid him commissions accordingly for verdict for the defendants.
four months, the remainder of the contract The facts are not in dispute. On July
period. 1917, the plaintiff, Martin, contracted with The claim of the plaintiff is for 5 per cent. the Richmond, Fredericksburg & Potomac commissions for services rendered in purRailroad Company to supply for three years chasing coal from June 5, 1918, when the all its fuel coal, buying it at his own expense Director General gave notice of his refusal and on his own credit, and delivering it to to adopt the contract of July 1, 1917, to the railroad at cost and a commission of 5 March 1, 1920, when the railroad company per cent. He furnished coal under the con
was returned to its owner, less the sums tract to the entire satisfaction and advan- paid him for expenses and compensation. tage of the railroad company until Decem- [1,2] Evidently, the railroad company is ber 28, 1917, when under the act of Congress not liable for services rendered by Martin (Act Feb. 28, 1920, § 206 [Comp. St. Ann. after the government frustrated the conSupp. 1923, 1007144cc]) the railroad was
tract by taking over the property. Missouri taken over by the President through the Di- Pacific Railroad Co. v. Ault, 256 U. S. 554, rector General. Thereafter until June 4, 41 Sup. Ct. 593, 65 L. Ed. 1087. It is equal1918, Martin continued to deliver all fuel ly clear that the Director General, taking coal for the railroad company under the or- possession under the authority of the fedders of the Director General. Deliveries eral statute, was not bound to carry out the and payments were made under the terms contract of the railroad company with Marof the contract. On June 5, 1918, the Di- tin, and that no action for its breach would rector General, through the president of the lie against him, unless by his action he railroad company, notified Martin that the adopted it. Omnia Commercial Co., Inc., coal contract would not be recognized by v. United States, 261 S. W. 502, 43 Sup. him and that, unless Martin would deliver Ct. 437, 67 L. Ed. 773. He had, however, the the coal at the regular price without the option of adopting the contract with Marcommission, some other arrangements would tin under the provisions of subdivision (h) be made to supply it. On the same day Mar- of section 4 of the contract between himself tin answered, protesting against the injus- and the railroad company. tice done him in the annulment of the con
Martin's right to recover must stand or tract, but saying: “I will continue to pur- fall on the issue whether the Director Genchase coal for you as suggested in your telugram, without prejudice to my rights under eral adopted the contract of July 1, 1917,
between Martin and the railroad company. the contract.” The Director General by letter and in per
It will be observed that throughout all of son several times reiterated his repudiation the correspondence and negotiations Martin of the contract. After June 4, 1918, he con
stood on his rights under the contract of tinued to receive the coal from Martin, but March 1, 1917, protesting always against the paid therefor only the cost price and ex- injustice of not carrying it out, when he penses, without the 5 per cent. commissions had abandoned his former business to enter or other compensation until January 1, 1919. into it. His consent of June 5, 1918, to go On that day Martin agreed with the Direc- on purchasing coal without receiving com
missions, and his agreement of January 1, v. American Turquoise Co., 220 U. $. 497, 1919, to perform the service for a compensa- 31 Sup. Ct. 488, 55 L. Ed. 559. Plaintiff tion of $200 a month and expenses, were ex- asked for a directed verdict, and in refusing pressly without prejudice to his rights un- it the District Judge, without request, directder that contract. But there was no reserva- ed a verdict for the defendant. The authortion of any other right. If he cannot recov- ities do not go to the extent of holding that er, therefore, under the contract, he cannot a request by one party for a directed verrecover at all.
dict is a submission of all issues to the court.  We do not think that it can be said The judgment is affirmed in the action there was no evidence of adoption of the against the railroad company, and reversed contract by the Director General. For five in the action against the Director General. months from December 28, 1917, to June 4, 1918, he and his agents in charge of the rail
On Rehearing. road received coal and made payments in accordance with the contract. It is true that WADDILL, Circuit Judge. This case, in the Director General had a reasonable time which there was a decision rendered on the to obtain the information necessary for him 5th day of February, 1924, is now before to make an intelligent election whether he the court upon application for rehearing would adopt or reject the contract. Mis- filed by both parties. The facts and hissouri Pac. R. Co. et al. v. Ault, 256 U. S. tory of the case are fully set forth in the 554, 562, 41 Sup. Ct. 593, 65 L. Ed. 1087; opinion already filed, and need but little Quincy Missouri & Pacific R. Co. v. Humph- elaboration. reys, 145 U. S. 82, 12 Sup. Ct. 787, 36 L. Ed. Briefly, on the 7th of July, 1917, plaintiff 632; United States Trust Co. v. Wabash in error contracted with the Richmond, Western Ry. Co., 150 U. S. 287, 299, 14 Fredericksburg & Potomac Railroad ComSup. Ct. 86, 37 L. Ed. 1085.
pany to supply for the period of three In deciding what was a reasonable time, years all of its fuel coal, he to buy at his the existing emergency and the immensity own expense and on his own credit, and to and number of questions to be decided by deliver such coal to the railroad at cost the Director General are to be taken into and a commission of 5 per cent. The coal account; but it is also to be taken into ac- was furnished under the contract to the count that the Director General had the bene- railroad until December 28, 1917, and the fit of the services and opinion and advice of plaintiff in error paid therefor. On that the President, Superintendent and General day the railroad, under an act of Congress, Counsel, who were performing the functions was taken over by the President of the of their respective offices for him and who United States through the Director General were thoroughly familiar with Martin's con- of Railroads. Thereafter, until the 4th of tract and services. The question decisive of June, 1918, coal was delivered and paid for the case, for the determination of the jury, under orders of the Director General upon was, therefore, whether under all the circum- the contract terms. On the 5th of June, stances the Director General, by acting un- 1918, the Director General notified plainder the contract and receiving its benefits for tiff in error that the contract would not be five months, should be considered to have further recognized by him, and that, unadopted it. If the Director General gave less the coal could be delivered at the regunotice within a reasonable time of his elec- lar price without commissions, some other tion to reject the contract, the plaintiff can- arrangement would have to be made to supnot recover. If, on the other hand, the Di- ply the same. On the same day, plaintiff rector General received the benefits and made in error protested against the injustice done payments under the contract for a longer him in the attempted annulment of the contime than was reasonably necessary for an tract, saying: "I will purchase coal for intelligent election, then he should be held you as suggested in your telegram, without to have adopted it. This issue, we think, prejudice to my rights under the contract." should have been submitted to the jury. The Director General, though repudiating
If both parties had asked for a directed the contract, nevertheless continued after verdict and nothing more, then the finding June 4, 1918, to receive coal thereunder, of the District Judge on the issues would be paying only the cost price and expenses, binding on both. Beuttell v. Magone, 157 without the 5 per cent. commission or other U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654; compensation until January 1, 1919. On Empire State Cattle Co. v. Atchison, Topeka that day, plaintiff in error agreed with the & Sante Fé R. Co., 210 U. S. 1, 28 Sup. Ct. Director General to deliver coal until the 807, 52 L. Ed 931, 15 Ann. Cas. 70; Sena end of the federal control, receiving therefor