The facts of this case, so far as they are ma- | signee and to distribute the same as part of the terial, are as follows: on the 14th of March, estate; and that he had the proceeds in hand 1878, proceedings in involuntary bankruptcy awaiting the determination of that question. were instituted in the District Court of the The bill also alleged that the goods were transUnited States for the Eastern District of Mich-ferred by the bankrupts, when insolvent, to Leigan, against Samuel Schott and Philip Feibish, composing the firm of Schott & Feibish. On the same day a warrant was issued by the court to the Marshal, under section 5024 of the Revised Statutes, commanding him "to take possession provisionally of all the property and effects of the debtors." The petitioning creditors gave a bond of indemnity to the Marshal, under Order No. 18 of the General Orders in Bankruptcy, and required him to seize, under the warrant, as the property of the debtors, certain goods in the hands of Joseph P. Leroux and Max Schott, composing the firm of Leroux & Co., then in the store of the latter at Bay City, Bay County, Michigan, which goods the creditors alleged had been transferred to J. Leroux & Co. by Samuel Schott and Feibish, in violation of the bankruptcy law. The seizure was made on the 29th of March by the Marshal, Salmon S. Matthews, assisted by his deputies, Myron Bunnell and Horace Becker. An adjudication of bankruptcy was made against Samuel Schott and Feibish on the 13th of April. On the 22d of April, J. Leroux & Co. commenced an action of trespass in the Circuit Court for Bay County, Michigan, against Matthews, Bunnell and Becker, to recover $25,000 damages for the acts of the defendants, on the 29th of March, in breaking and entering the store at Bay City and injuring the same, and taking therefrom and carrying away goods of the value of $25,000, the property of the plaintiffs, and converting the same to their own use, and preventing the plaintiffs, for three days, from carrying on their lawful business in the store. On the 6th of May, Joseph L. Hudson was appointed assignee in bankruptcy of Samuel Schott and Feibish, and became duly vested with that office. Thereupon the Marshal delivered the goods to the assignee, and the latter took possession of them as part of the estate of the bankrupts. The defendants in the trespass suit appeared therein by attorney and demanded a trial, and served a notice of defense, setting up the issuing of the provisional warrant, the seizure of the goods thereunder, the fact that they were the goods of Samuel Schott and Feibish, the adjudication in bankruptcy, the appointment of an assignee, and the fact that the goods had been turned over by the Marshal to the assignee and were held by him as a part of the estate of the bankrupts. At a Term of the State Circuit Court, in September following, on application of the defendants, the trial of the suit was postponed to the next Term, on affidavit of the illness and absence of an important witness. In October, 1878, Hudson, the assignee, Matthews, the Marshal, and Bunnell and Becker filed a bill in equity, in the Circuit Court of the United States for the Eastern District of Michigan, against Leroux and Max Schott, setting forth the substance of the above facts, and alleging that the goods had been sold by the assignee under the order of the bankruptcy court; that he was holding the proceeds to be applied as a part of the estate of the bankrupts, if the title should be found to be in the assignee, or he should be entitled to the said assets as as

roux and Max Schott, with a view to prevent them from coming to the assignee in bankruptcy, and a large part of them within three months before the filing of the petition in bankruptcy, and when Leroux and Max Schott knew that the transfer was made with a view to prevent the goods from going to the assignee, and to prevent them from being distributed under the Bankruptcy Act, to defeat its object and to injure and delay its operation and evade its provisions; that the transfers of the goods were, therefore, void and the title to them became vested in the assignee; that he claimed that by reason of the suit in the state court he was unable to proceed with the settlement of the estate of the bankrupts; that the funds so received by him for the goods must be kept until the question in reference to their title should be determined; and that the question in regard to the fraud on the Bankruptcy Act, so attempted, could not be litigated and determined in the state court. The bill then set forth various matters intended to show the existence of such fraud, and prayed that Leroux and Max Schott be enjoined from further prosecuting their suit, or any other suit in a state court, for damages in regard to the goods seized by the Marshal, and that if they should claim any interest therein they should proceed to establish their claim in the Circuit Court of the United States or in the District Court in Bankruptcy. It also prayed that any sale or transfer of the goods from the bankrupts to Leroux and Max Schott be set aside and decreed to be in violation of the Bankruptcy Act, and that the goods be decreed to be a part of the estate of the bankrupts, and that the title of the assignee to the goods or the funds arising therefrom be quieted and decreed to be perfected in him. In November following, on notice and after a hearing, the court granted a preliminary injunction in accordance with the prayer of the bill. Each of the defendants demurred separately to the bill for want of jurisdiction and want of equity. The demurrers were overruled, on a hearing. Each of the defendants then answered separately. The answers maintained the right of the defendants to proceed with the suit in the state court, and averred that they owned the goods at the time of the seizure, and denied the equity of the bill. Proofs were taken in the cause on both sides. At the close of the plaintiffs' proofs, the defendants entered on the record a protest against the jurisdiction of the court, with a statement that, by bringing the suit in the state court, they had not sought in any manner to interfere with the goods seized, but had waived the question of interference with the goods. A decree was entered adjudging that the goods were, at the time of their seizure, a part of the estate of the bankrupts; that the title thereto vested in the assignee; that the sale or transfer of them to the defendants was in violation of the Bankruptcy Act, and be set aside; that the title of the assignee to the goods and their proceeds be quieted and declared to be perfect; and that the defendants be perpetually enjoined according to the prayer of the bill. From this decree the defendants have appealed.

An assignee in bankruptcy has, by section 5129, the right, in case of a transfer of property to a person not a creditor of the bankrupt, in violation of that section, to "recover the property or the value thereof, as assets of the bankrupt." Here the assignee had the property and there was no occasion for him to bring a suit to recover it.

By section 4979, a Circuit Court of the United States has jurisdiction of a suit "At law or in equity brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee, touching any property or rights of the bankrupt transferable to or vested in the assignee." The jurisdiction invoked by the assignee in this case cannot be maintained under section 4979. It does not appear by the bill or the proofs that the defendants claim an interest in the proceeds of the goods adverse to the interest which the assignee claims in such proceeds. When the bill was filed the goods had been sold and were represented by their proceeds in the hands of the assignee. The only interest which the assignee then had touching the goods or in their proceeds was his claim to own those proceeds as assignee. No interest could be adverse to such interest of his unless it was another claim to

This suit divides itself into two branches: | retaining them, if Leroux and Max Schott still the case of the assignee, and that of the Mar- claimed title to them, inasmuch as the suit in shal and his deputies. The assignee was not a trespass was brought before the goods were party to the trespass suit. The plaintiffs in that turned over to the assignee. suit, abandoning all pursuit of the goods and all action against the assignee, brought and continued their suit for damages against the Marshal and his deputies. They did not disturb the possession of the goods in the assignee, or claim the proceeds of the goods. Although the bill states that the assignee, on applying to the bankruptcy court for an order to sell the goods, made known to it the facts as to the claim of Leroux and Max Schott thereto, it is not averred that any notice was given to them of the intention to sell or of the sale. It is provided as follows by section 5063 of the Revised Statutes: "Whenever it appears to the satisfaction of the bankruptcy court that the title to any portion of an estate, real or personal, which has come into the possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold under the direction of the assignee, who shall hold the funds received in place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property, in any suit or controversy between the parties in any court. But this provision shall not prevent the recovery of the property from the possession of the assignee by any prop-own or receive those proceeds. The defendants er action commenced at any time before the court orders the sale." The failure to give any notice to Leroux and Max Schott of the application for the order to sell the goods, although the facts as to their claim were laid before the bankruptcy court, and the fact that no suit was brought against the assignee to recover the possession of the goods from him, are evidence that the bankruptcy court and the assignee did not regard, and could not regard, the case as one where, under section 5063, the title to the goods was in dispute. It was not in dispute as between Leroux and Max Schott of the one part and the assignee of the other part. The former abandoned the goods and all claim to them or to their proceeds, and the assignee acted on that view in selling the goods without notice. They relied solely on their suit in trespass, and the defendants in that suit relied for protection, in case of adverse result, not on the goods or their proceeds, but on the bond of indemnity which the petitioning creditors had given to the Marshal. Under these circumstances, after pleading in the suit in the state court, and procuring a postponement of the trial, the defendants in that suit and the assignee joined in bringing the bill in equity. Had the Circuit Court of the United States any cognizance of the suit? There was no common interest between the assignee and the other plaintiffs. The assignee was not sued in the state court. When the suit in equity was brought, the Marshal had no interest in the goods, and no right to rely on them or their proceeds for indemnity, and no right to look to the assignee for protection. The Marshal turned the goods over to the assignee, and did so voluntarily, so far as appears, relying on the bond of indemnity as his protection, and substituting that in place of a retention of the goods, when he might well have insisted on

made no such claim. The bill does not allege that they did, but it and the proofs show that from the time they brought the trespass suit they never disputed the right of the assignee to deal with the goods and their proceeds as part of the assets of the estate. Nor is the bill filed to remove a cloud on the title to real estate or to set aside written instruments of title which might interpose obstacles to the rights of the assignee in the goods or their proceeds.

It is enacted by section 630 of the Revised Statutes "That the circuit court shall have jurisdiction in matters in bankruptcy, to be exercised within the limits and in the manner provided by law." This refers to the limitations in section 4979. As the bill avers that all the parties are citizens of Michigan, the jurisdiction of the circuit court in this case must be given by the bankruptcy statute or it does not exist. We are of opinion, upon full consideration, that it is not so given, notwithstanding what was said by this court in Ex parte Schwab, 98 U. S., 240 [XXV., 105].

It may, moreover, be said, that if there were jurisdiction by the citizenship of the parties a bill such as this, by the assignee in bankruptcy, to obtain such relief as he asked in respect to his own rights, would not lie, he being in possession, and his right to assert possession and ownership and to control and dispose of the property and its proceeds not being questioned or threatened.

As regards the Marshal and his deputies, apart from the assignee, there is nothing in the bankruptcy statute which authorizes them to invoke the action of the circuit court, for any relief by injunction in respect to the suit for trespass. As the assignee had no right conferred by that Statute to bring the suit in equity in respect to any claim of his own, he had no right as as

signee to bring it in respect to any claim of his co-plaintiffs, nor had all together any right conferred by that Statute to bring it. The relief sought by injunction depends wholly, as the bill is framed, on the right of the assignee, as such, to maintain the suit in respect to his own

case.

Mr. Justice Blatchford delivered the opinion of the court:

The facts in this case differ from those in Leroux v. Hudson [ante,468], herewith decided, as set forth in the opinion in that case, only in the following immaterial respects: the goods seized were in the hands of Max Schott, in his store at If the case as to the Marshal and his deputies East Saginaw, Saginaw County, Michigan, were one of jurisdiction by citizenship of the and had been transferred to him by the debtors. parties, it would fall within the principles laid The Marshal, Matthews, assisted by John E. down by this court in Buck v. Colbath, 3 Wall., Wells, a deputy, seized them on March 29, 1878. 334 [70 U.S.,XVIII.,257]. The provisional war- Max Schott, on the 6th of April, commenced rant being one merely commanding the Marshal an action of trespass in the Circuit Court for to seize the property of the debtors, it was for Saginaw County, Michigan, against Matthews the Marshal to determine for himself whether and Wells, to recover $25,000 damages for the the goods seized were legally liable to seizure acts of the defendants in breaking and entering under the warrant, and the circuit court could the store at East Saginaw,and taking therefrom afford him no protection against the conse- and carrying away goods of the plaintiffs of quences of an erroneous exercise of his judg- the value of $20,000, and converting the same ment in that determination. He was liable to to their own use, and preventing the plaintiffs suit in any court of competent jurisdiction, for from carrying on their lawful business in the injuries growing out of his mistakes. The state store. After the defendants in the trespass court in which the suit for trespass was brought suit had appeared therein by attorney, and dewas such a court, and that suit was an appro-manded a trial, and given the like notice of priate suit. The parties bringing it were entitled to proceed with that suit in that forum. As was said in Buck v. Colbath, there was nothing in the mere fact that the provisional warrant issued from a Federal Court, "to prevent the Marshal from being sued in the state court, in trespass, for his own tort, in levying it upon the property of a man against whom the writ did not run, and on property which was not liable to it." This view was re-affirmed in Sharpe v. Doyle, 102 U. S., 686 [XXVI., 277], and was there applied to a seizure under a provisional warrant in bankruptcy like that in the present

defense as was given in the suit for trespass brought by J. Leroux & Co., nothing further was done in the suit. In October, 1878, Hudson, the assignee, Matthews, the Marshal, and Wells filed a bill in equity, in the Circuit Court of the United States for the Eastern District of Michigan, against Max Schott, making the like allegations, mutatis mutandis, as to the goods taken from Max Schott, as were made in the bill filed by J. Leroux & Co. in regard to the goods taken from them, and containing a like prayer for relief and for an injunction. Like proceedings took place, except that a demurrer was embodied in the answer instead of being filed separately. The answer was of a like character, the proofs and protest were identical, and a like decree was entered, from which the defendant appealed.

The same questions are involved as in Leroux v. Hudson, the facts are substantially the same, and the same conclusions are reached. The decree of the Circuit Court is reversed and the cause is remanded to that court, with direction to dismiss the bill.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

MAX SCHOTT, Appt.,

D.

JOSEPH L. HUDSON, Assignee in Bankruptcy of SAMUEL SCHOTT ET AL.

(See S. C., Reporter's ed., 477, 478). *The decision in Leroux v. Hudson,herewith made, confirmed and applied to this case. [No. 100.]

Argued Nov. 6, 7, 1883. Decided Dec. 10, 1883.

A

PPEAL from the Circuit Court of the United

OAKEY RANDALL, Piff. in Err.,

0.

BALTIMORE AND OHIO RAILROAD
COMPANY.

(See S. C., Reporter's ed., 478-485.)

Verdict, when may be directed—negligence of railroad company-injury by fellow-servant—ringing bell at highway crossing.

*1. When the evidence given at the trial, with all

States for the Eastern District of Michigan. the inferences that the jury could justifiably draw

The history and facts of the case fully appear in the opinion of the court. See, also, the preceding case of Leroux v. Hudson, ante, 468.

Mr. Don M. Dickinson, for appellant. Messrs. H. C. Wisner and William F. Cogswell, for appellee.

*Head note by Mr. Justice BLATCHFORD.

*Head notes by Mr. Justice GRAY.

NOTE.-When a verdict may be directed by the court. See, note to Grand Chute v. Winegar, 82 U. S., XXI.,

174.

Who are co-employés or co-servants within the rule that a master is not responsible for injuries to a servant occasioned by the negligence of a co-servant. See note to Hough v. R. R. Co., 100 U. S., XXV., 612.

from it, is insufficient to support a verdict for the highway is reached," under a penalty of not explaintiff, so that such a verdict, if returned, must be set aside, the court may direct a verdict for the de-ceeding one hundred dollars for each neglect; and that "the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect." Stat. of W. Va. of 1873, ch. 88, sec. 31.

fendant.

2. A ground switch, of a form in common use, was placed in a railroad yard, in a space six feet wide between two tracks; the lock of the switch was in the middle of the space; and the handle, when lying flat, extended to within a foot of the adjacent rail, and could be safely and effectively worked by standing in the middle opposite the lock, using reasonable care. The brakeman of a train' on one of the tracks, while working at the switch, standing at the end of the handle, was struck by an engine on the other track. Held, that there was no such proof of fault on the part of the railroad corporation, in the construction and arrangement of the switch, as would support an action against it for the injury. 3. A brakeman, working a switch for his train on one track in a railroad yard, is a fellow-servant with the engineman of another train of the same corporation upon an adjacent track; and cannot main-ance of his duty as a brakeman on a freight tain an action against the corporation for an injury caused by the negligence of the engineman in driving his engine too fast and not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engineman. 4. A statute which provides that a bell or whistle shall be placed on every locomotive engine, and shall be rung or sounded by the engineman or fireman sixty rods from any highway crossing, and until the highway is reached, and that "the corporation owning the railroad shall be liable to any person injured for all damages sustained" by reason of neglect so to do, does not make the corporation liable for an injury, caused by negligence of the engineman or fireman in this respect, to a fellow-serv

Mr. Justice Gray delivered the opinion of the court:

This is an action against a Railroad Corporation by a brakeman in its employ, for personal injuries received, while working a switch, by being struck by one of its locomotive engines. The declaration, in seven different counts, alleged as grounds of action that the defendant negligently constructed and kept its tracks and switches in a defective and dangerous condition; that the defendant, by one of its agents and servants, who was at the time unskillful, negligent and unfit to perform the business and employment that he was engaged by the defendant to perform, and who was engaged in a service for the defendant other and different from the service in which the plaintiff was engaged, and whose negligence, unskillfulness and unfitness were known to the defendant, negligently propelled one of its locomotive engines against and over the plaintiff; that this was done with out sounding any whistle or ringing any bell, as required by the laws of the State of West Virginia; and that the defendant neglected proper precautions in the selection and employment of its agents and servants.

A statute of West Virginia provides that "A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or

As we understand the evidence introduced at the trial, it conclusively proved the following facts: the injury occurred at night at a place where, as the plaintiff himself testified, "there was one network of tracks," in the defendant's railroad yard, near the junction of a branch road with the main road, and about ten rods from a highway crossing. The plaintiff had previously been employed on another part of the road. On the night in question, in the performtrain, he unlocked a switch which enabled his train to pass from one track to another; and he was stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, backing down on the second track. The tender projected ten inches beyond the rail. The distance between the adjacent rails of the second and third tracks was about six feet. The second switch was a ground switch of a kind in common use, the lock of which was in the center of the space between the two tracks; and the handle of which was about two feet long, and when lying flat extended towards either track, and when thrown one way opened the switch, and when thrown the other way closed it. The switch could be worked efficiently and safely by a man standing midway between the two tracks, using reasonable care. It could not be safely worked by standing at the end of the handle while an engine was coming on the track next that end. Upright switches could not be used at a place where the tracks were so near together, without seriously interfering with the moving and management of the trains.

The plaintiff testified that he had never worked a ground switch before, and that the first switch was an upright switch. But he admitted on cross-examination that the two kinds of switches were unlocked in the same manner, and the other evidence established beyond doubt that the first switch was also a ground switch.

A single witness, who had been a brakeman, called for the plaintiff, in answer to a question, often repeated, of his counsel, whether that was a safe and proper switch to be used at that point, testified that he could not say it was a very safe place at that time there; that he thought that was not a proper kind of switch, and an upright switch would have been more convenient to handle; that he did not think it was a very safe ball there; that he thought it was not a safe ball there; and that it could not be unlocked without danger while an engine or train was coming upon the other track.

The engine which struck the plaintiff was being driven at a speed of about twelve miles an hour, by an engineman in the defendant's employ, and there was evidence tending to show that it had no light except the headlight, and no bell, and that its whistle was not sounded.

There was no evidence that the tracks were improperly constructed, or that the engineman

because at the time of the injury he was not acting under his contract of service with the defendant; in the one case, he had wholly ceased to be the defendant's servant; in the other, being a minor, he was performing, by direction of his superior, work outside of and disconnect

was unfit for his duty. The other grounds of | XXI., 739], the plaintiff maintained his action action relied on were: improper construction and arrangement of the switch; negligence of the defendant in running its engine, by an unskillful and negligent engineman, alleged to have been engaged in a different service for the defendant from that in which the plaintiff was engaged; and omission to comply with the re-ed with the contract which his father had made quirements of the Statute of West Virginia.

At the close of the whole evidence (of which all that is material is above stated), the court directed the jury to return a verdict for the defendant, because the evidence was such that if a verdict should be returned for the plaintiff, the court would be compelled to set it aside. A verdict for the defendant was accordingly returned, and the plaintiff sued out this writ of

error.

1. It is the settled law of this court, that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall., 116 [89 U. S., XXII., 780]; Herbert v. Butler, 97 U. S., 319 [XXIV., 958]; Bowditch | v. Boston, 101 U. S., 16 [XXV., 980]; Griggs v. Houston, 104 U. S., 553 [XXVI., 840]. And it has recently been decided by the House of Lords, upon careful consideration of the previous cases in England, that it is for the judge to say whether any facts have been established by sufficient evidence, from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred. R. Co. v. Jackson, 3 App. Cas., 193. Tried by this test, there was no sufficient evidence of any negligence on the part of the Railroad Company in the construction and arrangement of the switch, to warrant a verdict for the plaintiff on that ground. The testimony of the plaintiff and of his witness was too slight. A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and anyone who enters the service of a railroad corporation, in any work connected with the making up or moving of trains, assumes the risks of that condition of things. Although it was night, and the plaintiff had not been in this yard before, his lantern afforded the means of perceiving the arrangement of the switch and the position of the adjacent tracks. The switch was of a form in common use, and was, to say the least, quite as fit for its place and purpose as an upright switch would have been. It could have been safely and efficiently worked by standing opposite the lock, midway between the tracks, using reasonable care; and it was unnecessary, in order to work it, to stand, as the plaintiff did, at the end of the handle, next the adjacent track.

2. The general rule of law is now firmly established, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. This court has not hitherto had occasion to decide who are fellowservants, within the rule. In Packet Co. v. McCue, 17 Wall, 508 [84 U. S., XXI., 705] and in R. R. Co. v. Fort, 17 Wall., 553 [84 U. S., 109 U. S. UJ. S.. Book 21

for him with the defendant. In Hough v. R. Co., 100 U. S., 213 [XXV., 612], and in R Co. v. McDaniels [ante, 474], the action was for the fault of the master; either in providing an un safe engine, or in employing unfit servants.

Nor is it necessary, for the purposes of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several States; because persons standing in such a relation to one another as did this plaintiff and the engineman of the other train, are fellow-servants, ac cording to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the House of Lords, and in the English and Irish courts, as is clearly shown by the cases cited in the margin.* They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object, the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action, for an injury caused by such negligence, against the corporation, their common master.

The only cases cited by the plaintiff, which have any tendency to support the opposite conclusion, are the decisions of the Supreme Court of Wisconsin in Chamberlain v. R. R. Co., 11 Wis., 248, and of the Supreme Court of Tennessee in Haynes v. R. R. Co., 3 Coldw., 222, each of which wholly rejects the doctrine of the master's exemption from liability to one servant for the negligence of another, and the first of which has been overruled by the later cases in the same State.

This action cannot, therefore, be maintained for the negligence of the engine man in running his engine too fast, or in not giving due notice of its approach.

Co., 129 Mass., 268; Coon v. R. R. Co., 5 N. Y., 492; *Farwell v. R. R. Co., 4 Met., 49; Holden v. R. R. Wright v. R. R. Co., 25 N. Y., 562; Besel v. R. R. Co., 70 N. Y., 171; Slater v. Jewett, 85 N. Y., 61; McAndrews v. Burns, 10 Vroom, 117; Smith v. Iron Co., 13 Vroom, 467; Coal Co. v. Jones, 86 Pa. St., 432; Whaalan v. R. R. Co., 8 Ohio St., 249; R. Co. v. Devinney, 17 Ohio St., 197; Slattery v. R. Co., 23 Ind., 81; Smith v. Potter, 46 Mich., 258; Moseley v. Chamberlain, 18 v. R. R. Co., 11 Iowa, 421; Peterson v. Coal Co., 50 Wis., 700; Cooper v. R. Co., 23 Wis., 668; Sullivan Iowa, 673; Foster v. R. R. Co., 14 Minn., 360; Ponton v. R. R., Co., 6 Jones (N. C.), 245; R. R. Co. v. Robingan v. R. R. Co., 49 Cal., 128; Kielley v. Mining Co., son, 4 Bush, 507; R. Co. v. Smith, 59 Ala., 245; Ho3 Sawy., 500; Hutchinson v. York, Newcastle & Berwick R. Co., 5 Exch., 343; Bartonshill Coal Co. v. 3 Macq., 300; Wilson v. Merry, L. R. 1 H. L., 326; Reid, 3 Macq., 266; Bartonshill Coal Co. v. McGuire, Morgan v. Vale of Neath R. Co., 5 B. & S., 570, 736; S. C., L. R., 1 Q. B., 149; Tunney v. Midland R. Co., Conway v. Belfast & N. C. R. Co., Ir. R. 9 C. L., 498, L. R. 1 C. P., 291; Charles v. Taylor, 3 C. P. D., 492; and Ir. R. 11 C. L., 345