shall be subject to proof of insurable interest, and shall be pay able within ninety days after satisfactory proof." The assignment states that proof was brought within less than 90 days after the death of the assured. It is perhaps enough to say that the company repudiated all liability upon the policy, and refused to pay at all. This waived the stipulated delay, and authorized immediate suit. Hochster v. De La Tour, 2 El. & Bl. 678. But, aside from this, no such question was made below, and perhaps could not have been made after going to a jury upon a plea in abatement. "Where the plea in abatement is regularly put in, the plaintiff must reply to it or demur. If he reply, and an issue of fact be thereupon joined, and found for him, the judgment is peremptory quod recuperet." 1 Tidd, Prac. § 641. The reason stated is that, "the defendant choosing to put the whole weight of his cause on this issue, when he might have had a plea in chief, it is an admission that he had no other defense." 1 Bac. Abr. 31; 1 Archb. Pl. 225. This is the practice in Tennessee. Bacon v. Parker, 2 Tenn. 57; Straus v. Weil, 5 Cold. 126, 127; Simpson v. Railway Co., 89 Tenn. 308, 15 S. W. 735. The eighth assignment of error was that it was error to render final judgment against the defendant, and the judgment should have been respondeat ouster. This assignment was properly withdrawn by counsel for plaintiff in error, as it was manifestly bad. The judgment must be affirmed. EVANS V. LAKE ERIE & W. R. CO. (Circuit Court, D. Indiana. February 17, 1897.) No. 9,281. 1. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE AS DEFENSE-PLEADING. Contributory negligence is a matter of defense, in the national courts, and an answer setting up the contributory negligence of the plaintiff, in an action for personal injuries alleged to have been caused by defendant's negligence, is not demurrable. 2. SAME-ANSWER-DEMURRER. A paragraph in an answer, in an action for personal injuries alleged to have been caused by defendant's negligence, which sets up the negligence of one who was driving the vehicle in which the plaintiff was a passenger, such negligence not being imputable to the plaintiff, and also sets up plaintiff's own contributory negligence, which has already been fully pleaded, is demurrable, and may also be stricken out on motion as surplusage. Holstein & Barrett and Emerson McGriff, for plaintiffs. BAKER, District Judge. The plaintiff has interposed a demurrer to the second and third paragraphs of defendant's answer. The complaint, which is in four paragraphs, alleges that the plaintiff sustained serious and permanent injuries, without fault or negligence on her part, from the negligence of the defendant, while she was crossing its track on one of the principal streets of Portland, Ind. The first paragraph of answer is a general denial. The second par agraph is addressed to each paragraph of the complaint, and alleges that the plaintiff ought not to recover in this suit, because the negligence and want of ordinary care on the part of the plaintiff proximately contributed to cause the accident and injuries of which the plaintiff complains, and because the plaintiff did not, before entering upon the track, carefully look and listen for any train, cars, or locomotive that might be approaching, but, without the exercise of such care, or any care to avoid injury, entered upon said track, and received said injuries. Contributory negligence is a matter of defense in the national courts, and the facts stated in this paragraph show contributory negligence on the part of the plaintiff. This paragraph is therefore sufficient. Berry v. Railroad Co., 70 Fed. 193. The third paragraph of answer is addressed to each paragraph of the complaint. It sets up that the plaintiff, at the time she was approaching said crossing, and at the time she entered upon the same, was riding in a vehicle drawn by a horse or horses driven by one Frank Moore, to whose prudence and care or lack of the same she then and there negligently committed herself and her safety in the premises, without herself giving the matter of the safe crossing of said railroad any personal care or attention, although she was so situated that she might have done so; and that the said Frank Moore, driver as aforesaid, so in charge of said vehicle, did, without stopping or looking or listening for any approaching car or locomotive, or exercising any care in the premises to avoid injury, drive upon said track in a heedless and careless way, and thereby, and as the result thereof, said vehicle came in collision with said car or locomotive, and the plaintiff received the injuries of which she complains. In so far as this paragraph sets up the negligence of Frank Moore, it is immaterial, because it is settled by the decisions of the supreme court of this state and of the United States that the negligence of the driver is not imputable to the passenger riding with him. Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452; Miller v. Railway Co., 128 Ind. 97, 27 N. E. 339; Railway Co. v. McIntosh, 140 Ind. 261, 38 N. E. 476; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391. In so far as it charges negligence on the part of the plaintiff, it adds nothing to the allegations of her contributory negligence set out in the second paragraph of the answer. Whatever defense the defendant has growing out of the plaintiff's contributory negligence is fully stated in the second paragraph, and no new or material matter of defense is set up in the third paragraph. This latter paragraph of answer would have been stricken out on motion as surplusage, and in such case it is no error to eliminate it by sustaining a demurrer to it. The demurrer to the second paragraph of answer is overruled, to which ruling the plaintiff excepts; and the demurrer to the third paragraph of answer is sustained, to which ruling the defendant excepts. GRAND TRUNK RY. CO. OF CANADA v. COBLEIGH. (Circuit Court of Appeals, Second Circuit. February 23, 1897.) RAILROADS-ACCIDENT AT CROSSING-INSTRUCTIONS-DUTY TO LOOK AND LISTEN. In an action against a railroad company for alleged negligence in running over the plaintiff while crossing its tracks at a highway crossing, the defendant is entitled to have the jury specifically instructed as to the duty of the plaintiff, under such circumstances, to look and listen for a train, before attempting to cross the track, especially when the plaintiff's own testimony suggests that he may have been negligent in this respect; and a general charge that the plaintiff was bound to act as a prudent man would do under the circumstances, leaving it for the jury to fix the standard of prudence, is not sufficient. In Error to the Circuit Court of the United States for the District of Vermont. This was an action by Wayne Cobleigh against the Grand Trunk Railway Company of Canada to recover damages for personal injuries. The plaintiff recovered a verdict. A motion for a new trial was denied (75 Fed. 247), and the defendant now brings error to review the judgment against it. A. A. Strout, R. N. Chamberlin, and C. A. Hight, for plaintiff in error. Bates & May, for defendant in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The action was brought to recover damages for injuries sustained by the plaintiff by the alleged negligence of the defendant. While driving his team over the defendant's tracks where they intersected a public highway in the town of Stratford, N. H., he was struck by one of the defendant's trains. The negligence imputed was the failure of the defendant to sound the whistle and ring the bell upon the locomotive, as required by the statutes of the state. Error is assigned of the refusal of the trial judge to instruct the jury as requested in behalf of the defendant. The assignments of error present the single question whether the rulings of the trial judge in respect to the issue of the plaintiff's contributory negligence were correct. It appeared upon the trial that the accident took place on a November day, about noon, when there was a snow storm. The general course of the defendant's railroad was substantially north and south, and that of the highway was substantially east and west. the intersection being at practically a right angle. The plaintiff was on his way from the nearest village to his home, which was about four miles beyond the crossing, proceeding westerly, driving a pair of horses harnessed to a farm wagon. Along the highway easterly of the crossing, for a distance of about 1,200 feet, there was an unobstructed view of the railway track to the southerly as far as the station house and beyond. The station house was about 90 rods southerly from the crossing; and from the crossing to this building, and to a considerable distance southerly beyond, the railroad track ran upon an embankment higher than the adjacent land at either side. As the train which struck the plaintiff approached the semaphore located southerly from the station house, the whistle of the locomotive was blown. The plaintiff testified that when he was about 35 rods easterly from the crossing he heard this whistle; thought it was sounded at the semaphore, and supposed it to be a signal from a train coming from the south; that he knew that there was an express train from the south due at about that time, which did not stop at the station house, but that he gave the matter no thought. He further testified: "After I heard the whistle, I kept driving along until I got within, I should judge, eight to twelve rods from the track, and I stopped my team to see if I could see the train. I had heard it whistle distinctly. There was quite a bluster of snow coming directly in my face that blinded my view of the train, and I could not see it, and thought it had stopped. I started the team to go. I thought I could have ample time before they could get up steam to get by the tracks. The horses started into a trot. The first thing I knew after I started them, just as they was going to or did strike the track, the off mare threw up her head, and snorted, and I looked, and it looked as though the engine was coming right across into my lap, and I hollered and slapped the horses. They struck me. That is all I knew about it." A witness for the plaintiff, who was proceeding along the highway in the same direction with the plaintiff, and about 30 rods behind him, testified that he saw the train coming, and when plaintiff was some 15 or 20 rods from the crossing saw the plaintiff's horses were prancing; that he thought plaintiff did not see the train, and would have trouble with his horses. The testimony of other witnesses who were in the vicinity of the crossing at the time tended to show that the snow storm was not such as to obscure appreciably seeing the train a long distance away as it approached. Testimony was given tending to show that the train approached the crossing at a very high rate of speed, and did not give the statutory signals. Upon the question of the plaintiff's contributory negligence the trial judge instructed the jury as follows: "So you see that, although the railroad company brought this upon him, if he had a share in it, and contributed to it, he was in fault. In that view it becomes necessary to look at what would be a fault on his part. This is to be looked at in view of all the circumstances and in view of the law. He was situated just as he was, and heard the whistle, and the situation was as the evidence has shown it to be, and the law of the state of New Hampshire required that these two long and two short whistles should be given, and the bell be rung all the way. He had a right to rely on that being done. He had a right to expect that the law would be complied with. Now, take it altogether, in view of what he had a right to expect about that, in view of what he could see if he had looked, in view of what he could hear if he had listened, in view of the storm of snow and wind then going on as has been described.-look at the whole thing, and see if he did anything that a prudent man would not have done, or omitted anything that a prudent man would not have omitted, that brought this upon him. You know what a prudent man is. I do not qualify it one way or the other. But being right in his place, as is shown by the evidence; and in view of what he had a right to expect from the train; his knowledge that the railroad was there; the difficulty he had in seeing, bundled up as you think he was, to hinder his hearing; stopping, and doing just exactly what the evidence shows he did,-did he act prudently? If he did, that does not hinder his recovering. If he did not,-if his doing what he 78 F.-50 ought not to have done, or failure to do what he ought to have done, brought this upon himself, contributed to what happened,-then he is not entitled to recover; that is, contributed substantially, so that when you look at it you can say that, although the railroad company was in fault, he was too, and his fault helped the fault of the railroad company to bring this upon him." The defendant requested the following instructions, among others: "(3) That it was the duty of the plaintiff, after his attention had been called to an approaching train, to look and listen for such train at such distance from the crossing as to enable him to ascertain whether or not he could safely pass over the same without collision. And that, if they find that he did not so look and listen, he would be guilty of such contributory negligence as would prevent his recovery in this action, provided that such want of care contributed to produce the injury." "(8) That it is not sufficient to enable the plaintiff to recover, if it appears that he stopped at a distance of two hundred feet from the crossing, and being then unable, on account of a snow squall, to see the train which he had heard whistle, started his horses, and drove at a trot onto the track, without again looking for the train. If, under such circumstances, he drove onto the track, and injury ensued, he was guilty of contributory negligence, and cannot recover, even though the jury find that the defendant was also negligent in not giving proper signals for the crossing." These instructions were refused, and the trial judge declined to instruct the jury in respect to the issue of the contributory negli gence of the plaintiff other than as he had already instructed them. The defendant duly excepted to the instructions thus given and refused. It We think the defendant was entitled to the instructions requested. The plaintiff's own testimony suggested, if it did not prove, a strong case of contributory negligence on his part. would have justified a finding by the jury that he knew that a fast train from the south, which did not usually stop, had signaled its approach to the station; that such a train, being where the signal located it, would reach the crossing about the time he would; that he gave no thought to these circumstances, but proceeded, without paying any attention to them at all, until he reached a place about a dozen rods from the crossing; that he then stopped and looked and listened, but did not hear the train, and, owing to the snow, could not see whether one was coming or not; that he then proceeded, his horses on a trot, without any further attempt to discover whether he could cross the track without danger, until he reached the track, and was struck by the train. The jury would have been authorized to discredit the statement that he stopped at all, or that he made any effort whatever to discover whether he could safely cross, because other testimony indicated that the snow storm was not thick enough to have prevented him from seeing the train if he had looked for it at the point where he says he did; and the jury were not bound to accept his testimony, even though uncontradicted, as to any fact militating against his own prudence. A jury may properly reject any uncorroborated statement of a party to the action, even though there is no controverted testimony. Elwood v. Telegraph Co., 45 N. Y. 549; Dean v. Railway Co., 119 N. Y. 540, 23 N. E. 1054. If he did stop and look and listen, he was not excused from making any further |