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to look cut for No. 3, and run with reference to its movement, as provided for by the special orders in connection with the time-table. These orders and the time-table would have made Franconia the probable place of passing of the trains. The crew of No. 4 left Mellen with the intention of running to Franconia, and there going upon the siding. Train No. 3 left Kingman at 4:31, six minutes late, according to its schedule as provided by the special order No. 23 and the time card. Yucca, which was 23.9 miles west of Kingman and 12.8 miles east of Franconia, was the only night telegraph office between those two points. Train No. 3, according to the special order No. 23 and the time card, should have passed Yucca at 4:57. It passed there at 4:35, or two minutes ahead of its schedule time. At 4:58 or 4:59 the local telegraph operator at Yucca reported to the train dispatcher Moore that No. 3 passed Yucca at 4:55. Train No. 4 left Mellen, which was the only night telegraph office between Needles and Franconia, between 4:45 and 4:47, and ran 6.8 miles to Powell, arriving there at 5 o'clock. A stop of three or four minutes was made there for the purpose of adjusting the flow of fuel oil in one of the locomotives, and the train then proceeded toward Franconia. In the meantime Train No. 3 arrived at Franconia six minutes abead of the schedule time under the special order for leaving that station. The engineer, on approaching that station, whistled his signal to inquire if there were any orders there for his train, and received by semaphore signal from the operator the reply, "No orders from the train dispatcher.” He went on his way without stopping at Franconia, and while going at a speed of from 60 to 70 miles an hour, at about 11/4 miles from Franconia, collided with train No. 4, which was running at a speed of from 40 to 50 miles an hour. Both trains were wrecked, a number of persons were killed, and several others, including the defendant in error, sustained serious injuries. The operator at Franconia had no orders that morning for either No. 3 or No. 4. The defendant in error, but for the collision, could have reached and placed train No. 4 on the siding at Franconia station two or three minutes before train No. 3 was due there. The plaintiff in error's rule No. 385 only requires the train not having the right of track to take a siding and be clear of the main track before the leaving time of the opposing train. The plaintiff in error answered the complaint, denying that it was negligent, and alleging that the injuries received by the defendant in error were the result of his own negligence and carelessness and that of his fellow servants and co-employés. The case, by the stipulation of the parties, was tried before the court without a jury, and the court found that the train dispatclier Moore was negligent in failing to use ordinary and reasonable care and precaution to prevent said engines and trains from colliding and in failing to give proper orders as to the movements of one of said engines and trains. Judgment was entered for the defendant in error in the sum of $9,000, with costs.
T. J. Norton, E. E. Millikin, and J. Wade McDonald, for plaintiff in error.
Waters & Wylie, for defendant in error.
GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.
It is the contention of the plaintiff in error that the orders given by the train dispatcher, together with the regular time schedules and the rules and regulations of the company, known and understood by the crews of both trains, were sufficient, if observed, to have insured the safety of all concerned, and that the accident was the result of the failure of train No. 3 to observe said time schedule and rules and regulations in connection with the special orders, in that it passed Yucca two minutes ahead of time, and Franconia six minutes ahead of time; that there was no evidence to go to the jury tending to show negligence on the part of the plaintiff in error; and that its motion for nonsuit should have been granted by the court. It is argued that, although the train dispatcher was advised that train No. 3 had passed Yucca two minutes ahead of its passing time for that station, the circumstances did not make it his duty to send additional orders to that train, he having previously promulgated orders sufficient to have insured the safe operation of both trains had such orders been obeyed, and that, having once given proper and sufficient orders in the premises, the duty of the master to the employé had been fulfilled : and, further, that the violation of the orders by the conductor and engineer of train No. 3 was an act, not of the plaintiff in error, but of the fellow servants of the defendant in error, for which the former is not liable. It is assigned as error that the trial court erred in holding that it was the imperative duty of the railroad company to have attempted to enforce obedience to order No. 23 by ordering train No. 3 to stop at Franconia. The finding of fact of the trial court must stand as the verdict of a jury if there was any evidence whatever to sustain them. We cannot say, on examining the evidence in the bill of exceptions, that there was no evidence of negligence on the part of the plaintiff in error. The trial court found that "train No. 3, which should have passed Yucca at 4:57, did so at 4:55, and that Train Dispatcher Moore was notified of that fact in time to have stopped said train at Franconia,” and was of the opinion that in failing to so act he was negligent. Under the circumstances it would seem that ordinary prudence required of the train dispatcher that he fix a point of meeting of the trains; but, whatever may have been his duty in that regard, we think there was evidence of his negligence in the fact that, after he was advised that train No. 3 passed Yucca two minutes ahead of its time, and was running in violation of his orders, he failed to send orders to have that train stopped at Franconia. He had 12 or 13 minutes within which to make that order. He knew that No. 3 was running in advance of its schedule time, whether because of willful violation of the rules and orders or because on the downgrade track by these stations it had become uncontrollable, or because the engineer's watch was running slow; and he must have known that, if such violation of orders continued, there would probably be a collision. The engineer of train No. 3 testified that according to his watch he left both Yucca and Franconia on schedule time, and according to the orders. . It may be that the error of the train dispatcher in not sending special orders to Franconia was induced by his own negligent entries on his train sheet, a record which he kept of the progress by hour and minute of both of the trains. On that train sheet it appears that he had marked “5:45” and “5:47" as the time of the arrival and departure of train No. 4 at Mellen, instead of the figures "4:15” and “4:17,” which were the actual times at which that train arrived and left that station. The circumstances called for the exercise of the greatest care and diligence on the part of the plaintiff in error. It could not absolve itself from its duty by giving orders which, if strictly complied with, would have insured the safety of its employés. The duty was a continuing one, and called for the issuance of further orders as soon as it became apparent that a known failure to comply with orders already made was likely to or might result in disaster.
There was no error in holding the plaintiff in error accountable for the negligence of the train dispatcher. Northern Pacific Ry. Co. v. Dixon, 194 U. S. 338, 24 Sup. Ct. 683, 48 L. Ed. 1006; Oregon Short Line v. Frost, 74 Fed. 965, 21 C. C. A. 186. In Northern Pacific Ry. Co. v. Mix., 121 Fed. 476, 57 C. C. A. 592, this court approved the instruction given by the trial court to the jury in such a case as follows:
"It is the duty of the defendant company to all operatives upon its road to take all reasonable care and precaution to prevent opposing trains on its line of railway from colliding, and to exercise ordinary and reasonable care to notify, or cause to be notified, the operatives upon one train of the approach of a train in the opposite direction, and to give such orders as will insure the safe passage of the one by the other. With regard to the movement of trains, the train dispatcher stands in the place of the defendant."
The plaintiff in error challenges the jurisdiction of the Circuit Court, and contends that the allegation of the complaint as to the organization and existence of the plaintiff in error is not sufficient to show that it was a corporation of the United States. That allegation is as follows:
“That the defendant is now, and at all times mentioned herein was, a corporation organized and existing under the laws of the United States, having its principal place of business at and being a resident of Los Angeles, in the state of California.”
It is said that, in order to show jurisdiction in the Circuit Court, the complaint should have contained the allegation that the plaintiff in error was created by and existed under a law of the United States, and that it derives all its corporate powers and authority from such law, and that in the maintenance and operation of the railroad in question it was exercising or claiming to exercise such powers and authority. We think that all this is necessarily implied in the undenied allegation of the complaint. If the plaintiff in error was organized and existed under the laws of the United States, it could not have been organized or had its existence under other authority. It must have been a corporation of the United States, and as such entitled to maintain the action in the Circuit Court Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319.
The judgment of the Circuit Court is affirmed.
GRIFFIN V. AMERICAN GOLD MIN. CO.
(Circuit Court of Appeals, Ninth Circuit February 27, 1905.)
No. 1,111, ATTACHMENT_RETURN-SUFFICIENCY.
Where a marshal's return on an attachment merely recited that, “in obedience to the annexed writ of attachment, I have attached the following described property, to wit," etc., and did not specify the acts or steps taken in levying the writ, it would be presumed, in support of the levy, that as to the real property the marshal attached the same by leaving a copy with the occupant thereof, or, if there was no occupant, by leaving in a conspicuous place thereon, and with respect to the personal property, that such as was not capable of manual delivery was attached by leaving
a copy of the writ with the person in possession of the same, as required by Code Civ. Proc. Or. 88 149, 151, in force in Alaska at the time of the levy.
(Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attachment, $8 1166, 1167.]
In Error to the District Court of the United States for the First Division of the District of Alaska.
R. F. Lewis, E. S. Pillsbury, and Pillsbury, Madison & Sutro, for plaintiff in error.
Malony & Cobb, for defendant in error.
MORROW, Circuit Judge. This action was commenced by the plaintiff in error in the District Court of the United States for the District of Alaska on November 20, 1893, to recover from the defendant in error the sum of $25,000, with interest, on a contract for the conveyance of a mining claim. On February 18, 1901, judgment was rendered against the plaintiff in error. On writ of error to this court the judgment was reversed (Griffin v. American Gold Mining Co., 123 Fed. 283, 59 C. C. A. 301), and the cause was remanded for further proceedings not inconsistent with the opinion of the court. In pursuance of the mandate the District Court proceeded with the cause." Findings of fact and conclusions of law were made and filed, and judgment for the plaintiff in error was entered on March 31, 1904.
It appears from the record that on the 20th day of November, 1893, at the time of the issuance of a summons in the action, a writ of attachment was issued, and on the 24th day of November, 1893, there was recorded by the recorder for the District of Alaska, in the records of the Juneau recording district, the return of the marshal showing that certain property had been attached. It is provided by section 309 of the Code of Civil Procedure of Oregon (Bellinger & C. Comp.) that, "if judgment be recovered by the plaintiff, and it shall appear that the property has been attached in the action and has not been sold as perishable property, or discharged from the attachment as provided by law, the court shall order and adjudge the property to be sold to satisfy the plaintiff's demands." At the time this action was commenced the laws of Oregon were in force in Alaska, under the provisions of section 7 of the act of Congress of May 17, 1884, c. 53 (23 Stat. 24), and the same provision has been continued under section 147 of the Code of Civil Procedure of Alaska (31 Stat. 356). The judgment entered in the District Court contained no provision for the sale of the attached property, as required by the statute. To correct this omission, the plaintiff in error, on June 13, 1901, gave notice to the defendant in error of a motion to amend the judgment by adding thereto a clause that the property attached be sold to satisfy plaintiff's demands. This motion the court denied upon the ground that the marshal's return to the writ of attachment failed to set out the particular acts performed by him in levying the attachment, the court holding that the attachment was void by reason of such omission. The Code of Civil Procedure of
Oregon in force at that time in Alaska had the following provision relating to attachments:
“Sec. 149. The sheriff to whom the writ is directed and delivered shall execute the same without delay, as follows: (1) Real property shall be attached, by leaving with the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the writ certified by the sheriff ; (2) personal property capable of manual delivery to the sheriff, and not in the possession of a third person, shall be attached by taking it into his custody; (3) other personal property shall be attached, by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having the possession of the same, or if it be a debt, then with the debtor, or if it be rights or shares in the stock of an association or corporation, or interest or profits thereon, then with such person or officer of such association or corporation as this code authorizes a summons to be served upon."
"Sec. 151. If real property be attached, the sheriff shall make a certificate containing the title of the cause, the names of the parties, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff, and the date thereof. Within ten days from the date of the attachment, the sheriff shall deliver such certificate to the county clerk of the county in which such real property is situated, who shall file the same in his office, and record it in a book to be kept for that purpose. When such certificate is so fled for record, the lien in favor of the plaintiff shall attach to the real property described in the certificate from the date of the attachment, but if filed afterwards, it shall only attach, as against third persons, from the date of such subsequent filing. Whenever such lien shall be discharged, it shall be the duty of the county clerk, when requested, to record the transcript of any order, entry of satisfaction of judgment, or other proceeding of record, whereby it appears that such lien has been discharged, in the book mentioned in this section. The clerk shall also enter on the margin of the page on which the certificate is recorded a minute of the discharge, and the page and book where recorded."
The return of the marshal to the writ of attachment was as follows: “In obedience to the annexed writ of attachment, I have attached the following described property, to wit.” It was objected to this return that, with respect to the real property sought to be attached, it did not show that the marshal had attached the same by leaving with the occupant thereof, or, if there was no occupant, by leaving in a conspicuous place thereon, a copy of the writ certified to by the marshal, and, with respect to the personal property, that the return did not show that such of it as was capable of manual delivery, and not in the possession of a third person, had been taken into custody, and that the other property had been attached by leaving a certified copy of the writ and a notice specifying the property attached with the person having the possession of the same. It is contended by the plaintiff in error that the presumption of law is that the marshal performed his official duty, and that his official acts were regular, and that this presumption is sufficient to support the validity of the attachment, in the absence of anything in the writ itself or in the return tending to overcome this presumption, or anything in the record tending to show that the proceedings were irregular. The court below, in holding the attachment void, relied upon the case of Hall v. Stevenson, 19 Or. 153, 23 Pac. 887, 20 Am. St. Rep. 803. In that case there were two tracts of land involved in a suit for the foreclosure of a mortgage. The same land was involved in an attachment suit, and the question was, which had the prior lien, the mortgage or the attachment? The writ of attachment was deliv