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so far as the hearing was concerned, it was immaterial whether the appellee were excluded from the mine or not. But whatever may have been the purpose of the affidavit, and however immaterial the question of the exclusion of the appellee from the mine may have been to the questions involved on the hearing of that application, the affidavit nevertheless shows clearly and distinctly the hostile attitude of the mining company toward the question of the admission of the appellee to the mining property-an attitude that, so far as the evidence shows, had been continuous and uninterrupted upon the part of the mining company and its predecessors in interest from the beginning of the litigation. It is true that the evidence in this case contains the admission of the appellee that he did not at any time between May 6, 1901, and January 1, 1902, ask the privilege of entering the mine, but it is also true that the mining company never offered him that privilege. Counsel for the appellants argue that, if there were exclusion in February, 1902, that fact would not tend to prove exclusion during the period between May 6, 1901, and January 1st following, and that presumptions do not work backwards. But we think the fair presumption is that an exclusion shown to have existed in and long prior to May, 1901, and to have existed in December and February following, was continuous between those periods, and that to show that it was so continuous the appellee was not required to prove a specific act of exclusion on either or any of the intervening days. The admission of the appellee's agents to the mine on January 1, 1902, was not the voluntary act of the mining company. It was obtained only upon the order of the Circuit Court, and against the opposition of the mining company. We find no error, therefore, in the finding of the Circuit Court that the exclusion continued at least until that date.
It remains to be considered whether the Circuit Court erred in entering a decree against the American Bonding Company of Baltimore. In November, 1902, the decree of the Circuit Court was entered in favor of the appellee for $175,867.02 and costs. Of that amount the appellee collected $5,523.42. Both parties appealed from the decree. Upon hearing the appeals this court directed a modification of the decree in favor of the appellee herein. A supersedeas bond in the sum of $200,000, with the American Bonding Company as surety, had been given by the mining company upon its appeal. That appeal not having been sustained by this court, both the principal and the surety became liable for the amount of the decree appealed from. After the mandate of this court was filed in the court below, the appellee herein filed a motion to proceed, and gave notice to the appellants that he would apply for a summary decree upon the bond. Prior to the filing of the examiner's report, the appellee filed his petition and motion for summary judgment upon the bond, and gave due notice of his intention to present the motion. Service was made upon the mining company and upon the vice president of the American Bonding Company. Service upon the latter was admitted in the following words: “Service of the foregoing motion, petition, and notice is hereby admitted this 29th day of April, 1904.” On the day fixed for the hearing the appellants appeared. The bonding company made objection to the entry of a sum
mary judgment on the ground that no order to show cause had been served upon it, and it contended that the court had no jurisdiction to enter a judgment against it except upon process issued out of the court and under its seal. The statutes of Idaho, as do those of many other states, provide that judgment may be entered on motion against the sureties by the court from which the appeal is taken, pursuant to the stipulations. Idaho Ann. Code 1901, $ 3576. It is held that such a provision is not only not unconstitutional (Beall v. New Mexico, 16 Wall. 535, 21 L. Ed. 292), but that similar provisions of state laws may properly be followed by the federal courts (Smith et al. v. Gaines, 93 U. S. 341, 23 L. Ed. 901). In Moore v. Huntington, 17 Vall. 417, 21 L. Ed. 642, Mr. Justice Miller said:
“It is a very common and useful thing to provide by statute that sureties in appeal and writ of error bonds shall be liable to such judgment in the appellate court as may be rendered against their principals. This is founded on the proposition that such sureties, by the act of signing the bond, become voluntary parties to the suit, and subject themselves thereby to the decree of the court."
Independently of such statutory provisions, it has been held that federal courts, upon a mandate determining that the conditions of the bond have been broken, will enter a summary judgment against the sureties on a supersedeas bond. In Third National Bank v. Gordon (C. C.) 53 Fed. 471, it was held that, where a judgment of the Circuit Court has been affirmed by the Supreme Court, and the condition of the supersedeas bond given under rule 29 of the Supreme Court has been thereby broken, judgment may be had thereon by motion against the sureties as well as the principal. The court said:
"The nature and character of a supersedeas bond seem to imply a more summary remedy upon it than a suit to enforce it. The plaintiff's judgment is superseded, and he is for the time deprived of his remedy by exe cution to obtain the fruits of his judgment. The supersedeas bond is given and approved by the judge of the court in which the cause was heard and the judgment obtained; and the giving and acceptance of such brnd are, to some extent, like a confession of judgment, if the appellant fails to maintain his contention in the appellate court."
That decision was affirmed by the Circuit Court of Appeals for the Fifth Circuit in Gordon v. Third National Bank, 56 Fed. 790, 6 C. C. A. 125, in which, in a carefully considered opinion, it was said:
"In this connection it may be well to notice that the motion for judgment in this case bas all the necessary elements of a scire facias; and, propei notice thereof having been served on all of the obligors in the bond, and "hey having all appeared, and the sureties having interposed demurrers, not well taken, considering it as a scire facias, and having failed to plead or answar, the court could well proceed to enter judgment on the record alone without other proof.”
The court, having found in these considerations ground to sustain the judgment of the court below, proceeded to consider the case as the parties and the court below had treated it, namely, as a proceeding authorized by the state laws of Alabama, and the practice of the United States Circuit Court for that state and of the United States courts in general, and found upon that ground also that it was a proceeding in accordance with the law and practice of the federal courts. In Blossom
v. Railroad Company, 1 Wall. 655, 17 L. Ed. 673, Mr. Justice Miller, speaking for the court, referred to the fact that after a decree adjudicating rights between the parties to a suit, other persons having no previous interest in the litigation may become connected with the case in the course of subsequent proceedings in such a manner as to subject them to the jurisdiction of the court and render them liable to its orders, and said:
"Sureties signing appeal bonds, stay bonds, delivery bonds, and receiptors under writs of attachment, become quasi parties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgments may be rendered on their bonds or recognizances."
In Tyler Mining Company v. Last Chance Mining Company, 90 Fed. 21, 32 C. C. A. 498, this court held that a summary decree for damages upon an injunction bond could properly be entered against the sureties. Lea v. Deakin (D. C.) 13 Fed. 514; Russell v. Farley, 105 U. S. 433, 26 L. Ed. 1060. The trial court did not err, therefore, in rendering judgment against the surety on the appeal bond.
The decree of that court is affirmed.
LOS ANGELES TRACTION CO. V. CONNEALLY et al.
(Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)
1. STREET RAILROADS-INJURIES AT CROSSING-CONTRIBUTORY, NEGLIGENCE
In an action for death caused by a collision with a street car at a crossing, there was evidence that the horse deceased was driving approached the crossing at a gallop, whereupon the motorman immediately applied the brakes and did everything in his power to stop the car, and so far succeeded that deceased almost got across the track before the cart was struck. Immediately after the collision the horse appeared to be "sweaty,” but stood quietly with two of his feet on the curbing of the sidewalk. The cart, when struck, was in a position indicating that deceased saw the car and took a diagonal course to cross ahead of it. Held, that such facts justified a finding that deceased was guilty of contributory negligence, so that it was error to charge that, in the absence of all evidence tending to show whether deceased stopped, looked, and listened before attempting to cross, it would be presumed that he did.
[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads,
88 210-215.) 2. Same-DUTY TO STOP, LOOK, AND LISTEN.
A person about to cross a street railroad track in an incorporated city is not bound, as a matter of law, to stop, look, and listen.
[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, 88 210–215, 256, 257.)
In Error to the Circuit Court of the United States for the Southern District of California.
Harris & Harris and Byron L. Oliver, for plaintiff in error.
ROSS, Circuit Judge. This action was brought for the recovery of damages for injuries resulting in the death of one Luke Conneally, father of the plaintiffs to the action, defendants in error here, and resulted in a verdict and judgment in their favor. The injuries were received in a collision of Conneally's cart with one of the electric cars of the plaintiff in error, at the intersection of Jefferson street and Vermont avenue, in the city of Los Angeles. In its answer the defendant to the action put in issue the averments of negligence on its part, and also pleaded contributory negligence on the part of the deceased. The questions presented on the present appeal grew out of the latter defense.
The case is fairly stated by counsel, and is, in substance, as follows: Early in the evening of the accident, Conneally, who was a dairyman, and a strong, healthy man about 37 years of age, came into the city of Los Angeles to attend a meeting of the Milkmen's Association, and on his way to the meeting stopped at a saloon and took one drink of whisky; without apparent effect, however, for the evidence is undisputed that he was entirely sober at the meeting. After the meeting, and between 10:30 and 11 o'clock, he drank at least two glasses of beer; about 11:15 or 11:30 of the same evening he took within a few minutes of each other two drinks of whisky, and a few minutes later he drank at another saloon two small glasses of beer. During most of this time Conneally was accompanied by two other milkmen, named respectively E. Paggi and George W. Hood, both of whom were witnesses for the plaintiffs at the trial in the court below. These three persons lived near each other, and, after the drinking of the last two glasses of beer by Conneally, they started for their homes, Paggi and Hood in one conveyance, and Conneally in a heavy two-wheeled cart, drawn by one small, gentle horse. As they proceeded, Conneally was sometimes ahead, and at others Paggi and Hood were ahead, driving at the rate of about six miles an hour. There was no moon, and the night was dark and foggy, but it appears from the uncontradicted testimony that there was no difficulty in seeing from 30 to 40 yards. As the crossing of Jefferson street and Vermont avenue was approached, at which there was no street light, Paggi and Hood were in advance, and Conneally was following in his cart some 30 or 35 yards in the rear, which cart, according to the evidence, made a rattling noise. On Vermont avenue the defendant company had two tracks. The car that struck Conneally's cart and inflicted the injury which resulted in his death was going south on Vermont avenue, and was therefore on the west track. That street is straight for half a mile north from its crossing with Jefferson street, and its view unobstructed to one at the crossing. Of the men in the vehicle ahead of Conneally's, one testified that he saw no light on the car or from the car until after the accident; that he looked for a light, and saw none. The other said that "shortly after approaching Vermont, probably 30 or 40 feet from the line of the car track,” he "glanced right and left, and saw no car.” The motorman and conductor of the car that did the damage, and the motorman on a car approaching from the south, testified that the car was lighted; and the conductor further testified that at the time of the accident he was engaged in making up his trip sheet; and several witnesses testified that from the arrangement of the electric current, and from the fact that other cars on that circuit were lighted, the car in question must have had its lights burning. Paggi and Hood testified that they heard po gong or other warning from the car, while the motorman's testimony was to the effect that he sounded the gong all the way down Vermont avenue. The car seems to have been going, at the time of the accident, at the rate of about 10 miles an hour, whereas the speed prescribed by an ordinance of the city was not to exceed 8 miles an hour.
It appears from the diagram introduced in evidence that Jefferson street is 60 feet, and Vermont avenue 80 feet, in width. So far as appears, there was but one eyewitness of the accident, who was the motorman of the car that inflicted the injury. He testified, among other things, as follows:
"As we approached the place of the accident, the front end of the car was somewhere between the lines of Jefferson street. I tbink it was near the north line, and a single rig came out of the darkness and started across the tracks in front of me. The horse was on a gallop, and just the moment I saw him I applied the brakes and reversed my car, and did everything in my power to stop, but I so slowed the car that he alınost got across the track. If he had moved eighteen inches farther he would have cleared the track, but he didn't more that distance, so I struck the cart. To stop the car, I first applied the brake and threw my reverse. That is all that could be done to stop it. I made an extraordinary good stop. From the time I saw the cart, I should judge I stopped within a car length and a half-in the neighborhood of that. I believe a car is 39 feet in length. The moment I saw the cart I put on the brakes and tried to stop the car. After the accident occurred I got off the car and went back to the body. He [Conneally) was lying on his face, was turned over, and I examined him and felt his pulse, and he was still alive. I asked the conductor to go to Dr. Kissler's and call him. He lived only about half a block from where the accident happened. The conductor was at the body when I reached it; no one else. Mr. Hood and Mr. Paggi came afterwards. I am positive they did not come up until after. One of the first things I noticed was that Mr. Conneally had been drinking. I smelled liquor; it was real strong. The horse was standing with his front feet on the curbing, opposite the car. He was standing real still. He was tied afterwards."
The motorman's description of the position and condition of the horse was corroborated by the testimony of other witnesses, both for the plaintiffs and for the defendant, one of whom added that the horse was “sweaty.”
After telling the jury that the burden of proof rested upon the plaintiffs as to all of the issues except that of contributory negligence, and that as to that the burden of proof rested upon the defendant, the court below instructed the jury as follows:
"Contributory negligence is such an act or omission on the part of the person injured, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act or acts of the defendant, was the proximate cause of the injury complained of by the plaintiffs, and whether or not said deceased exercised due care and caution before or in crossing or attempting to cross defendant's railway track is one of the issues submitted for your determination. The court, however, instructs you in this connection that it is the duty of an individual, before crossing or attempting to cross a railroad track, to exercise reasonable care in the use of bis senses of sight and hearing, to ascertain whether or not a car or train is approaching, and, if he fails to exercise such reasonable care, he is guilty of negligence.
“The court further instructs you on this branch of the case that, in the ab