THE DECISIONS

[91]

OF THE

Supreme Court of the United States,

AT

OCTOBER TERM, 1888.

[Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.]

IN ERROR to the Circuit District of Pentinglarke v. Holmes, 7 Hurl. & N. 94, patter son v. Pittsburg & C. R. Co. 76 Pa. 393; D. C. v. McElligott, 117 U. S. 621 (29: 946).

or remove defective machinery or incompetent

servants.

Cleveland etc. R. Co. v. Keary, 3 Ohio St. 201. Unless negligence was the only possible inference to be drawn from the fact of not remembering, under all the circumstances, that the step was off, then the court could not declare as matter of law that plaintiff was guilty of contributory negligence.

Johnson v. Bruner, 61 Pa. 63; Conn. Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612, 615 (28: 536); Phoenix Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 32 (27: 66); Manchester v. Ericsson, 105 U. S. 347, 349-50 (26: 1099, 1100).

Messrs. A. H. Wintersteen and Wayne Mac Veagh, for defendant in error:

Where the plaintiff has so far contributed to the injury by his want of ordinary care that but for such want of ordinary care on his part the injury would not have been done, the railway is not liable to him in damages for such injury.

Patterson, Ry. Accident Law, § 45 and cases cited.

Where a servant has equal means of knowing the danger, so that the master and servant stand equal in that respect, and the servant is not specifically commanded as to the time and manner in which the work may be done, but is told to do a particular thing, and has such discretion that he can have some control over the means, time and manner of doing the work, then, unless he does it in a way and with the means which will be the safest, he is guilty of contributory negligence.

English v. Chicago, M. & St. P. R. Co. 24 Fed. Rep. 906; Shanny v. Androscoggin Mills, 66 Maine, 420; Foy v. Buchanan, 4 N. Y. S. R. 894; Northern Pac. R. Co. v. Herbert, 116 U. S. 642 (29: 755).

The negligence of the defendant does not relieve the plaintiff of the duty of caring for his own safety.

Chicago etc. R. Co. v. Houston, 95 U. S. 697 (24: 542); Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615 (29: 224); D. C. v. McElligott, 117 U. S. 621 (29: 946); Tuff v. Warman, 5 C. B. N. S. 573; Williams v. Holland, 6 Car. & P. 23; Bunn v. Del. L. & W. R. Co. 6 Hun, 303; Toomey v. Turner, 24 Hun, 599; Becht v. Corbin, 92 N. Y. 658; Dunn v. R. R. 78 Va. 645; Rudd v. Richmond & D. R. Co. 23 Am. & Eng. R. R. Cas. 253; Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492.

Marshall v. Hubbard, 117 U. S. 415 (29: 919);
Pleasants v. Fant, 89 U. S. 22 Wall. 116, 143
(22: 780); Montclair v. Dana, 107 U. S. 162
(27: 436); Randall v. Balt. & O. R. Co. 109 U.
S. 478, 483 (27: 1003, 1005); Anderson Co. v.
Beal and Baylis v. Travelers Ins. Co. 113 U. S.
227, 241, 816, 320 (28: 966, 971, 989, 990); Scho-
field v. Chicago, M. & St. P. R. Co. 114 U. S.
615, 619 (29: 224, 225), and cases there cited;
Hathaway v. E. Tenn., V. & G. R. Co. 29 Fed.
Rep. 489; Goodlett v. Louisville & N. R. Co.
122 U. S. 391, 411 (30: 1230, 1234); Balt. & P.
R. Co. v. Jones, 95 U. S. 439 (24: 506); Doggett
v. Ill. Cent. R. Co. 34 Iowa, 284; Cunningham
v. Chicago, M. & St. P. R. Co. 5 McCrary, 465.

A brakeman is charged with knowledge of
the obvious condition of the structures, etc., of
the cars with which he is to perform his duties,
and he cannot recover for injuries arising from
defects of which he had knowledge.
Ferguson v. Fall Brook Coal Co. 4 N. Y. S.
Rep. 423.

Mr. Justice Harlan delivered the opinion [92] of the court:

This is an action to recover damages for personal injuries sustained by the plaintiff while in the discharge of his duties as an employé of the Northern Central Railway Company. It is based upon the alleged negligence of the Company in not providing suitable and safe appliances for the cars on which the plaintiff was assigned for duty. At the conclusion of the evidence introduced in his behalf the court directed a verdict for the Company.

It was in evidence that at midnight, in the month of February, a train of freight cars, belonging to or being operated by the defendant, left Marysville, on its line of road, for the City of Baltimore. The rear car was the caboose; the third car from the caboose was an ordinary "house car;" the fourth one was laden with lumber. The car upon which the plaintiff was required to take position while the train was in motion was about the eighth or tenth one from the caboose. His principal duty was to "brake" the train from that car back to the caboose. When the train, moving southward, was going into York Haven, twenty miles from Marysville, the plaintiff, while passing over it for the purpose of putting down the brakes, discov ered that the third car from the caboose had one step off at the end nearest the engine, and immediately called the attention of the conIt may be a question for the jury to say ductor to the fact. The conductor promised to whether an employé, under all the circum-drop that car at the coal yard or junction bestances, is negligent in remaining at his work after discovering its danger and a promise is given him that the danger would be removed. Hough v. Texas & Pac. R. Co. 100 U. S. 224 (25: 617); D. C. v. McElligott, 117 U. S. 632 (29: 949); Laning v. N. Y. C. R. Co. 49 N. Y. 521; Patterson v. Pittsburg & C. R. Co. 76 Pa. 389; Ford v. Fitchburg R. Co. 110 Mass. 261; Cunard Steamship Co. v. Carey, 119 U. S. 245 (30: 354); Chicago & N. R. Co. v. McLaughlin, 119 U. S. 566 (30: 477).

When the evidence, after giving the plaintiff the benefit of every inference that could fairly be drawn from it, is insufficient to authorize a verdict in his favor, so that such a verdict, if returned, must be set aside, a peremptory instruction for the defendant is proper.

yond them, in the direction of Baltimore, if
upon looking at his manifests he found that it
did not contain perishable freight. When the
train stopped, about 4 or 5 o'clock in the
morning, at Coldfelters, some miles north of
the coal yard or junction, the plaintiff went to
the caboose to eat his breakfast and warm him-
self. It was snowing, freezing and sleeting.
One of the witnesses testified that "it was a
fearful cold night, raining and sleeting; the
train was covered with ice and snow; . . . it
was most bitter cold; the rain was freezing as
it fell; a regular winter's storm." While the
plaintiff was in the caboose eating his break-
fast the train moved off. He immediately
started for his post, leaving behind his coat and
gloves. Upon reaching the south end of the

third car from the caboose he attempted to let | did not contain perishable freight. Hough v. [93] himself down from it in order to reach the next Texas & P. R. Co. 100 U. S. 224 [25:617]; D. car ahead of him, which was the lumber car, C. v. McElligott, 117 U. S. 621, 631 [29:946,949]. and pass over the latter to the one on which he But it is said that the efficient, proximate usually stood while the train was in motion. cause of the injury to the plaintiff was his use At the moment he let himself down from the of the defective appliances at the end of the top of the house car he forgot that one of its car from which he fell, when he knew and at steps was missing; and, before realizing the the moment of letting himself down from that danger of his position, and without being able car should not have forgotten, as he said he then to lift himself back to the top of the car, did, that one of its steps was missing. It is he fell below upon the railroad track and be- undoubtedly the law that an employé is guilty tween the wheels of the moving train, causing of contributory negligence which will defeat him to lose both legs. The plaintiff testified his right to recover for injuries sustained in the that if, at the moment of letting himself down course of his employment, where such injuries from the top of the car, he had recalled the substantially resulted from dangers so obvious fact that one of its steps was gone, he might and threatening that a reasonably prudent man, have pulled himself back with his hands, or under similar circumstances, would have have slid down" on the brake rod; for he avoided them if in his power to do so. He had before climbed up and down by holding will be deemed, in such case, to have assumed that rod with one hand and putting his foot the risks involved in such needless exposure of against it and pulling himself up until he himself to danger. Hough v. Texas & P. R. touched the running board. He testified that Co., D. C. v. McElligott, and Goodlett v. Louishe could not remember how his mind was oc- ville & N. R. Co. above cited; Northern Pac. R. cupied at the time; "only going to my post, Co. v. Herbert, 116 U. S. 642 [29:755]. But in my mind was on that; going where I had the determining whether an employé has recklessly right to be." Again: When the accident exposed himself to peril, or failed to exercise happened, 1 was going to my place on the the care for his personal safety that might reatrain. I had no other duty on the top of the sonably be expected, regard must always be cars as the train was moving off, unless the had to the exigencies of his position, indeed, to engineer calls for a signal, and generally he all the circumstances of the particular occasion. does do that when the train is moving off. In the case before us, the jury may, not unreaThere is occasion for it in all places where the sonably, have inferred from the evidence that train starts or stops, only in cities, where we while the plaintiff was passing along the tops aren't allowed to blow them. We are required of the cars, for the purpose of reaching his to notice the train when it is running, to see post, he was so blinded or confused by the that it is all going; the train might start and go darkness, snow and rain, or so affected by the 100 yards and then break loose." severe cold, that he failed to observe, in time to protect himself, that the car from which he attempted to let himself down was the identical one which, during the previous part of the night, he had discovered to be without its full complement of steps. While a proper regard for his own personal safety, and his duty to his employer, required that he should bear in mind, while passing over the cars to his station, that one of them was defective in its appointments, it was also his duty to reach his post at the earliest practicable moment; for not only might the safety of the moving train have depended upon the brakemen being at their posts, but the engineer was entitled to know, as the train moved off, by signals from the brakemen, if necessary, that none of the cars constituting the train had become detached. If it be sug gested that the plaintiff ought not to have left his post and gone to the caboose when the train stopped at Coldfelters, the answer furnished by the proof is that he was justified in so doing, by usage and by the extraordinary severity of the weather. And if his going back from the caboose was characterized by such haste as interfered with a critical examination of the cars as he passed over them, that may, in some measure at least, have been due to the fact that the first notice he had of the necessity of immediately returning to his post was that the train was moving off.

[94]

This was, in substance, the case made by the plaintiff's evidence.

The circuit court proceeded upon the ground that contributory negligence upon the part of the plaintiff was so conclusively established that it would have been compelled, in the exercise of a sound judicial discretion, to set aside any verdict returned in his favor. If the evidence, giving the plaintiff the benefit of every inference to be fairly drawn from it, sustained this view, then the direction to find for the defendant was proper. Phanix Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 32 [27: 65, 66]; Randall v. Balt. & O. R. Co. 109 U. S. 478, 482 [27: 1003, 1005]; Anderson Co. v. Beal, 113 U. S. 227, 241 [28: 966, 971]; Goodlet v. Louisville & N. R. Co. 122 U. S. 391, 411 [30: 1230, 1234.] But we are of opinion that the question of contributory negligence should have been sub mitted to the jury. It caunot be said that the plaintiff was guilty of contributory negligence in staying upon the train, in the capacity of brakeman, after observing that a step was missing from one of the cars over which he might pass while discharging his duties. An employé upon a railroad train, likely to meet other trains, owes it to the public, as well as to his employer, not to abandon his post unnecessarily. Besides, the danger arising from the defective car was not so imminent as to subject him to the charge of recklessness in remaining at his post under the conductor's assurance that the car should be removed from the train when it reached the coal yard or junction, if upon examining his manifests he found that it

Without further discussion of the evidence, and without intimating any opinion as to what ought to be the verdict upon the issue of contributory negligence, we are of opinion that the court erred in not submitting to the jury to determine whether the plaintiff, in forgetting,

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[96]

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At the trial before a jury the following facts were proved or admitted:

or not recalling, at the precise moment, the fact | until long since the commencement of this
that the car from which he attempted to let action.
himself down was the one from which a step
was missing, was in the exercise of the degree
of care and caution which was incumbent upon
a man of ordinary prudence in the same calling,
and under the circumstances in which he was
placed. If he was, then he was not guilty of
contributory negligence that would defeat his
right of recovery.

Judgment is reversed and the case remanded, with directions to grant a new trial.

LEATHER MANUFACTURERS NA-
TIONAL BANK, Plff. in Err.,

V.

MERCHANTS NATIONAL BANK.

(See S. C. Reporter's ed. 26-39.)
Forged indorsement of check-recovery of money
paid thereon-consideration-limitation of ac-
tion-New York law.

1. If a bank, upon which a check is drawn payable to a particular person or order, pays the amount of the check to one presenting it with a forged indorsement of the payee's name, both parties supposing the indorsement to be genuine, the right of action of the bank to recover back the money from the person so obtaining it accrues immediately upon the payment of the money.

2. One who by presenting forged paper to a bank procures the payment of the amount thereof to him, even if he makes no express warranty, in law represents that the paper is genuine; and, if the payment is made in ignorance of the forgery, he is fiable to an action by the bank to recover back the money which, in equity and good conscience, has 3. It is not a case in which a consideration, which had once existed, fails by subsequent election or other act of either party, or of a third person; but there is never, at any stage of the transaction, any consideration for the payment.

never ceased to be its property.

4. The Statute of Limitations begins to run immediately upon the payment.

5. The plaintiff's right of action did not depend upon any express promise by the defendant after the discovery of the mistake, or upon any demand by the plaintiff upon the defendant, but accrued at the date of the payment, and was, in New York, barred by the Statute of Limitations in six years from that date.

[No. 10.]

Argued Dec. 2, 5, 1887. Decided Oct. 22, 1888.

N ERROR to the Circuit Court of the United
District

I
York, to review a judgment for plaintiff in an
action to recover back the amount of a check
upon which the indorsement was forged, which
plaintiff paid without knowledge of the for-
gery. Reversed, on the ground that the action
was barred by the Statute of Limitations.

Statement by Mr. Justice Gray:

The original action was brought December 7, 1877, by the Merchants National Bank of the City of New York against the Leather Manufacturers National Bank to recover back the sum of $17,500 paid on March 10, 1870, to the defendant, the holder of a check drawn upon the plaintiff for that amount, with interest from June 20, 1877. The defendant, among other defenses, pleaded the Statute of Limitations, and also that the plaintiff never demanded repayment or tendered the check to the defendant!

On March 9, 1870, the Bank of British North America, having a larger amount on deposit with the Merchants Bank, drew upon that bank a check for $17,500, payable to Margaret G. Halpine or order, and delivered it to Thomson & Ramsay; and this check, with the names of Mrs. Halpine and of William C. Barrett indorsed thereon, came to the hands of Howes & Macy, private bankers, who deposited it with the Leather Manufacturers Bank. On March 10, 1870, the Merchants Bank paid the amount of the check to the Leather Manufacturers Bank through the clearing house, and charged the amount on its own books to the Bank of British North America. By the usual course of dealing between the Bank of British North America and the Merchants Bank, the pass book containing entries of the deposits made by the one, and of the payments made by the other on account thereof, was written up and returned to the Bank of British North America fortnightly, together with the checks and other vouchers for such payments; and on March 17, 1870, the pass book containing the charge of the payment of the check in question was so balanced and returned with the check. The account between the Bank of British North America and the Merchants Bank continued to exist until February 21, 1881, the day of the trial of the action brought by the former bank against the latter, mentioned below.

At the time of the payment by the Merchants Bank to the Leather Manufacturers Bank, both parties believed Mrs. Halpine's indorsement to be genuine; whereas, in fact it had been forged by Barrett, the second indorser, who afterwards absconded. Howes & Macy failed in 1873.

The Bank of British North America, on or about January 24, 1877, first learned that Mrs. Halpine contended that her indorsement was forged, and on January 26, 1877, notified that fact to the Merchants Bank; and on June 2, 1877, demanded of that Bank payment of the amount of the check, and left the check with it that it might look into the matter. On the same day, the Merchants Bank showed the check to the Leather Manufacturers Bank, informed it that the Bank of British North America had demanded repayment of the money because the gery; and made a like demand upon the Leather Manufacturers Bank, which declined to pay. On June 20, 1877, the Merchants Bank returned the check to the Bank of British North America, and that bank again demanded of the Merchants Bank payment of the amount, and tendered it the check; and it refused to pay.

On August 10, 1877, the Bank of British North America gave written notice to the Merchants Bank that it had been sued for the amount of the check, by reason of the Merchants Bank having paid the same upon a forged indorsement, and that, in the event of being held liable for the amount, it should hold the Merchants Bank to its strict legal liability. The action against the Bank of British North America is reported as 'Thomson v. Bank of British North America, 82 N. Y. 1.

On November 7, 1877, the Bank of British

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