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ations, approached him twice. “He sent for me,” said the witness, "first on the 13th [of October). The second time, when he offered me the $500, I went up and told Mr. Schofield (plaintiff's attorney]. I went right away, I guess. I think I went and seen him and told him the same day this proposition was made to me to settle for $500. I told him I had been offered $500 to settle the case, and from that time I don't believe I saw Mr. Schofield again until I went out.”

The court below instructed the jury, among other things:

“That if a person who has been injured by the willful, wanton, or negligent act of another is fraudulently induced to sign a release for the damages sustained, such release will not operate as a bar to the prosecution for damages to recover for such injuries; and, in this case, if you believe from the evidence that the written release offered in evidence by the defendants was signed by the plaintiff at a time when he was not in a condition to understand what he was doing, then such release would not be binding upon the plaintiff, and would constitute no defense against the cause of action set forth in the complaint. And it would be immaterial whether such condition of mind was brought about by the plaintiff or by the connivance of others. I also further instruct you in this connection that if you believe from the evidence that plaintiff received the sum of $500 from one Charles Hoxsie, acting as agent for defendants, or any of them, such fact would be immaterial if you further believe from the evidence that the release was fraudulently obtained, or was signed at a time when plaintiff did not realize what he was doing, and, under these circumstances, it would not be necessary that plaintiff should tender back said money, or repay the same to the defendants, but the jury should, in case they return a verdict for plaintiff, deduct such sum of $500 from the damage assessed, if they believe from the evidence that such sum was paid to plaintiff.”

The giving of these instructions to the jury were excepted to at the time by the defendants, and are assigned for error here, as also the refusal of the court to give the following instruction requested by the defendants :

“A release executed, even though it be executed by one who is wholly incompetent by reason of intoxication to legally execute such release, is not thereby rendered void, but merely voidable. In such case, if the plaintiff desired to avoid said release, it was his duty to restore, or offer to restore, within a reasonable time, everything of value which he received as a consideration for such release, and in the event of such failure to do so, he will be bound by the release, even though the jury should believe he was so intoxicated at the time of signing it as to be incompetent of executing it.”

We are of the opinion that the court below erred in giving the instructions complained of. The case was not one of that class wherein the court, having it within its power to fully protect the interest of the adverse party in case of rescission, might proceed to a hearing without requiring the repayment or tender of the money received in consideration of the release, illustrations of which class of cases may be found in Thackrah v. Haas, 119 U. S. 499, y Sup. Ct. 311, 30 L. Ed. 486, and Billings v. Smelting Company, 52 Fed. 250, 3 C. C. A. 69. In the present case the jury might have found that the whole of the damage suffered by the plaintiff did not, in fact, amount to $500—the amount the defendants paid the plaintiff in settlement. And since the defendants put in issue all of the allegations of the complaint, it might, if the evidence justified it, have been found by the jury that the plaintiff was not entitled to recover at all. Yet the court below ruled that it was not necessary that the plaintiff should have repaid or tendered the money received by him, as a condition precedent to avoiding the release. That such is not the law upon such a state of facts was distinctly held by this court in the case of Hill v. Northern Pacific Railway Company, 113 Fed. 914, 51 C. C. A. 544. .

The judgment is reversed, and cause remanded to the court below for a new trial.

(Circuit Court of Appeals, Second Circuit. May 22, 1906.)



Intestate boarded defendant's train at a small station, where there was neither station agent nor baggageman. He went into the baggage car with a hamper, according to custom, and, after receiving a check, stepped on the platform, while the train was in motion, to go to the smoking or passenger car, when a gust of wind raised his hat, and, as he relinquished his hold on the door handle of the car, he was thrown from the platform and killed. Held, that intestate was not guilty of contributory negligence


Defendant had provided platform gates for its cars which it was the duty of the brakeman to close when the train departed from stations, It was also the brakeman's duty when a train was behind time to protect the rear end. The brakeman was engaged in this duty when the train left a small station at which there was neither station agent nor baggageman, after intestate had boarded the baggage car with his baggage, according to custom. After he obtained a check for his baggage, he started to leave the baggage car, as required, after the train had started, and while he was passing from one car to the other he was thrown from the platform and killed. Held, that whether the gates provided were sufficient, and whether the carrier was guilty of negligence in failing to have them closed, were for the jury.

In Error to the Circuit Court of the United States for the District of Vermont.

See 131 Fed. 152.

Writ of error to review a judgment of the United States Circuit Court for the District of Vermont, entered upon the verdict of a jury in favor of the plaintiff. The material facts are stated in the opinion.

W. B. C. Stickney, for plaintiff in error.
Clarke C. Fitts, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

TOWNSEND, Circuit Judge. The assignments of error challenge the action of the trial court in submitting the case to the jury, on the ground that the evidence failed to show negligence on the part of defendant, but showed that plaintiff's testator was guilty of contributory negligence, and are further directed against certain portions of the charge of the court.

On the morning of June 29, 1903, plaintiff's husband boarded defendant's train as a passenger at Northville, a small station where the defendant regularly stopped its train to take on passengers and their baggage, and where there was neither a station agent nor baggageman. He went into the baggage car with a hamper, and, after receiving a check, stepped on the platform, in order to go to the smoking or passenger car, when a gust of wind raised his hat, and, as he relinquished his hold of the rail or door handle of the car to grasp for his hat, he was thrown from the platform and killed. There was considerable evidence tending to show contributory negligence on his part, but this was all submitted to the jury in an admirable charge, reviewing all the material facts, by which the jury were instructed that Mr. Stockwell was bound to look out for himself, as a prudent man should do under such circumstances, and that if the accident was the result of any fault or negligence on his part the plaintiff could not recover.

We are satisfied, upon an examination of the evidence, that the question of contributory negligence was one upon which reasonable men might fairly differ in opinion, and that under the settled rule this question was properly left to the jury. Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485.

The serious question in the case is as to whether there was any evidence tending to show neglect by the defendant of any legal duty to plaintiff's testator. The complaint alleged that it was the duty of defendant to provide suitable gates in place to prevent passengers who were passing over the platforms of the cars while in motion from falling off from said platforms, and that defendant failed in its duty in this regard. The facts in regard to the gates are as follows:

"It was the usual duty of the brakeman to open and close the gates, hereinafter referred to, as the train arrived and departed from the stations, and the usual place of the brakeman was at or near the smoking or passenger car as the train stopped at stations; but the rules of the company required that when the train was running behind time and another train following close that the brakeman should take his position at the rear end of the train with the flag, so that in case the train was stopped for any cause he could run back and flag any approaching train, and the brakeman on this train on the day in question did so take his position on the rear end of said train No. 45 at Newbury, as required by the rule, and as was made necessary by the fact that the said express train was running close to train 45 after Newbury was passed, and the brakeman, for said reason, was at the rear end of the said train when the said stop was made at Northville station. The baggage car (which Mr. Stockwell went into upon boarding the train) and passenger and smoker were equipped with gates upon both sides of the platform, strongly built of iron, and standing about the same height as the hand rails on the outside of the cars. Upon the doors of the cars inside was a warning to passengers not to ride on the platform. These gates were not shut at the time of the accident, for the reason that the brakeman was at the rear. It did not appear that Mr Stockwell had any knowledge of, or any reason to know of, the cause of the train's delay, or of the fact that the brakeman was out of his usual place, at the rear end of the train, nor that the gates would not be shut as the train left the station, as was the usual custom. There was no notice at the station as to how passengers taking the train there could get their bag. gage checked. The conductor, as the train stopped at Northville, took his usual position at the passenger coach to help passengers on and off the car. There was no employé of the defendant at the smoking car or baggage car, except the baggagemaster inside the baggage car.”

It was claimed that these gates were not of a sufficient height to prevent a person from falling off the platform, and that they were not put there for any such purpose, but only to prevent passengers from alighting from cars upon the wrong side at stations, and “that passengers were not expected to pass through the trains when in motion.” Whether a jury would be justified in a finding of negligence predicated upon the mere fact, unaccompanied by other circumstances, that gates such as those here in question were not closed while the train was in motion is a question which is not before us, and upon which we express no opinion. But here the evidence showed that defendant failed to provide any facilities for checking baggage at Northville, and failed to establish any rule, or give notice or furnish information to passengers, as to how baggage received there should be checked, and that, while passengers were forbidden to ride in the baggage car, it was frequently a custom, acquiesced in by the defendant, for passengers taking the train at Northville to go into the baggage car, get their baggage checked, and then go back into the passenger car. By virtue of this practice the passenger was permitted to enter the baggage car in order to check his baggage, but by rule he was expressly forbidden to remain therein. We think, therefore, that the defendant must be assumed to have expected that passengers would pass from the baggage car to the passenger car while the train was in motion, and that it was its duty to provide all necessary and proper means for the protection of passengers at such time. On this occasion defendant failed to provide in the usual way for the closing of the gates, because the brakeman charged with that duty was otherwise engaged at the rear of the train, and no one was supplied to take his place. The customary practice, sanctioned by the defendant, constituted an invitation to passengers to pass over the platform leading to the baggage car when the train was in motion, and therefore the questions as to the sufficiency of said gates and as to the negligence of defendant in failing to have them closed were proper ones to be submitted to the jury. The language of the charge on this branch of the case was clear, accurate, and eminently fair. We are satisfied that there was no error in the submission of this question to the jury, and that the charge of the court fully and fairly covered the issues raised in the case, and that there was no error therein.

The assignment of error as to submission to the jury of the question of reasonable advice from the baggageman is not raised by any exception.

The judgment is affirmed.


(Circuit Court of Appeals, Eighth CircuitJune 15, 1906.)

No. 2,362.



In proceedings for contempt, the federal appellate courts are courts for the correction of the errors of the court below only. Questions not presented or decided in the court below are not open to consideration or decision in the appellate courts.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Contempt, $ 232.] 2. WITNESSES-DISOBEDIENCE OF SUBPQENA-INSUFFICIENCY OF PLEADINGS


Neither the immateriality of the evidence to be elicited nor the insufficiency of the pleadings will justify a witness in disobeying a subpoena to testify in a suit in equity in a federal court.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, $ 37.) (Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Nebraska.

R. S. Hall (Howard Mansfield and J. M. Woolworth, on the brief), for plaintiffs in error.

C. C. Wright (John L. Webster and John P. Breen, on the brief), for defendants in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge. This writ of error challenges a judgment for contempt of court by which a fine was imposed upon each of the plaintiffs in error for his refusal to appear and testify in obedience to a subpæna which commanded him to appear before the examiner with certain books and to give testimony in a suit in equity which was pending and at issue in the court below. These witnesses were not adjudged guilty of contempt nor fined for their failure to produce the books, but solely because they declined to appear and testify, so that it is not material to the decision in this proceeding whether or not the command to produce the books was rightfully inserted in the subpæna.

Upon a writ of error to review a judgment of contempt this is a court for the correction of the errors of the court below. The circuit court committed no error in overruling the objection to the judgment that the fees of the witnesses were not paid to them, because that objection was not presented to the Çircuit Court and it made no ruling whatever upon it. The objection does not appear in the record, nor in the assignment of errors. It is presented for the first time in the brief for plaintiffs in error, and it is not open for consideration here.

The only other reasons suggested why these witnesses should not have testified are that the evidence sought from them was immaterial, and that the court below, in an opinion upon an application for an in

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