Eppendorf v. Brooklyn, etc., Railroad Company.

The court submitted the evidence to the jury, both upon the questions of defendant's negligence, and of plaintiff's contributory negligence, by a charge entirely fair which is not complained of. At the close of plaintiff's evidence, defendant's counsel moved for a non-suit upon the ground of plaintiff's contributory negligence in getting upon the car while it was in motien. The denial of this motion presents the main question for our consideration.

It cannot be said, as matter of law, that it is always negligent for a person to get upon a street car while in motion. Phillips v. R. & Sar. R. R. Co., 49 N. Y. 177; Morrison v. Erie R. Co., 56 id. 302; Mettlestadt v. Ninth Ave. R. R. Co., 4 Robt. 377; Burrows v. Erie R. R. Co., 63 N. Y. 556.

Ordinarily it is perfectly safe to get upon a street car moving slowly, and thousands of people do it every day with perfect safety. But there may be exceptional cases, when the car is moving rapidly, or when the person is infirm and clumsy, or is incumbered with children, packages or other hindrances, or when there are other unfavorable conditions, when it would be reckless to do so, and a court might, upon undisputed evidence, hold as matter of law that there was negligence in doing so. But in most cases it must be a question for a jury. Here there was nothing exceptional, and no reason apparent why plaintiff might not, with prudence, have expected to enter the car with safety. He had the right to expect that the speed of the car would continue arrested until he was safely on the car. It was the act of the driver in letting go the brake without notice, and thus suddenly giving the car a jerk while plaintiff was getting upon it, that caused the accident.

Upon all the evidence of this case it was for the jury to determine whether the plaintiff was chargeable with negligence, and whether such negligence contributed to the injury.

The offer of defendant's counsel to show that plaintiff was in the habit of jumping on defendant's cars when in motion was properly excluded. It is impossible to perceive what bearing the evidence offered could have. It is not claimed that plaintiff had ever before met with any accident in getting upon the cars, and that thus the evidence would show that it was a dangerous thing to do. If the evidence had been given, its most natural tendency would have been to show that a person could with safety get upon moving street cars. It was not offered to show that the plaintiff was generally careless or reckless, and if it had been, it would have been incompe

Devlin v. Devlin,

tent. The simple fact that he was in the habit of jumping upon the moving cars could have no bearing in this case. The sole question to be determined here, so far as relates to plaintiff's alleged contributory negligence, was the character of the plaintiff's acts under the circumstances existing at the time; and what he may have done at some other time, under other circumstances, could have no bearing upon that question. The judgment must be affirmed.

All concur, ANDREWS, J., absent.

Judgment affirmed.

DEVLIN V. DEVLIN.

(69 N. Y. 212.)

Trade-mark-Infringement-Contempt.

The plaintiffs, composing the firm of Devlin & Co., clothing dealers, brought an action to restrain defendant from using their firm name in the same business, and procured an injunction restraining him from displaying said firm name upon signs, etc., and restricting him to the use of his own "proper Christian and surname, conjoined," without any deceptive or misleading devices. Defendant thereupon displayed a sign upon which were the words "Devlin's Clothing;" above the words " Devlin's" were the defendant's initials "J. S.," with the number of his shop "826" on each side. Held, that a finding that the sign was arranged and intended to deceive was justified, and that an order adjudging defendant guilty of contempt was proper.

A

CTION to restrain defendant from using plaintiffs' firm name

in the same business. The plaintiffs were engaged in New York city, in the clothing business, under the firm name of Devlin & Co. The defendant John S. Devlin was engaged in the same business in the same place, without any partner. He suspended a large wire sign across the street in front of his shop, displaying the words "Devlin & Co.," over them a monogram of the letters "J. S." with "826," the number of his shop, on each side, and underneath the word "clothing."

An injunction was issued in said action restraining defendant, his servants, etc., "from issuing, displaying or otherwise using, in or upon a sign or signs, the name or designa

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Devlin v. Devlin.

tion of Devlin & Co., either separately or conjunctively, with any word or words, or letter or letters, monogram or other emblems or device; and from using the said designation in any way or manner calculated to mislead or induce the public to believe or suppose that he is the plaintiffs, or that his store or the goods, wares or merchandise sold or offered for sale by him, are the store, or the goods, wares or merchandise of the plaintiffs, Devlin & Co.; and that the said John S. Devlin, his agents and employees, and each of them, forthwith discontinue and cease the issuing, displaying or using of all and every his sign, * * * whercon the aforesaid designation, Devlin & Co., is printed or painted, appears or is used, and that he, the said John S. Devlin be and he is hereby confined, whenever the word or words Devlin appears or is used in his advertisements, signs, to his own proper Christian, middle and surname conjoined, and without monograms, signs or other devices which may tend to mislead or induce the public or any other person as aforesaid; and it is further

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"Ordered, that the said John S. Devlin be and he hereby is confined to the use of his own name-John S. Devlin or J. S. Devlin-without the use of a monogram containing the initials J. S., or other device as aforesaid; but nothing herein is to be construed or interpreted as preventing the said defendant from using his own name in his advertisements, signs or placards."

Defendant, after service of the order, changed his sign by putting the letters "J. S.," in place of the monogram, and in place of the "&Co.," putting the letter "S." and a hand. So that the sign, as changed, appeared as follows:

"826 J. S. 826

"DEVLIN'S D

"CLOTHING."

The Special Term adjudged defendant guilty of contempt, imposed a fine, and directed the removal of the sign; this was affirmed at General Term, and the defendant appealed.

Walter Edwards, Jr., for defendant.

John E. Develin, for plaintiffs.

CHURCH, Ch. J. Both the Special and General Terms have decided that the words and letters on the altered signs are so

Western Transportation Company v. Hoyt.

arranged as to deceive the public, and were so intended. The initial letters" J. S." being placed over the word Devlin, and flanked by the No. of the store of defendant, it is said violates the injunction not to use the defendant's Christian and surname, in a manner calculated to deceive, and requiring that they must be conjoined. The facts will justify this inference and in such a case the general rule is for this court to adopt the conclusions of the court below. The initials are not strictly conjoined to the surname, and it is probable that" Devlin's clothing" is still the distinguishing feature of the sign which the defendant was forbidden to use, and that from the situation of the initials between the figures on the top of the sign they would not or might not be understood to have been intended as a part of the name. The defendant may have intended to comply with the injunction, but the courts below think that he has failed to do so, and within the rule adverted to we feel constrained to follow their finding of fact, but as we concur with the learned judge, who delivered the opinion at General Term, that the decision "sails very close to the wind," we are inclined to affirm the order without costs to either party as against the other in this court.

All concur except EARL, J., dissenting.

Order affirmed.

WESTERN TRANSPORTATION COMPANY v. HOYT.

(69 N. Y. 230.)

Common carrier — Incomplete delivery — Pro rata freight.

A carrier, who has contracted to transport goods and deliver them to the consignee, but who on the arrival of the goods at their destination, stores a portion instead of delivering them, is not entitled to freight, nor even to pro rata freight on the portion stored, although the consignee may have taken the goods, indemnifying the warehouseman against any claim for freight.

Pro rata freight is earned only where there is a voluntary acceptance at an intermediate port, justifying the inference that further carriage was dis. pensed with.

Where the carrier has failed to perform his own contract, he may

still recover

Western Transportation Company v. Hoyt.

his advances for charges of a previous carrier under an independent contract although his bill of lading is for carriage and delivery upon payment of freight and charges.

A

CTION by a common carrier for freight and charges on a cargo of oats. The oats were shipped at Buffalo from the west, by a bill of lading for New York, by which the plaintiff agreed to transport and deliver the cargo to the consignees, upon payment of freight and charges as prescribed, and stated the amount of the freight from Buffalo to New York, and of the Lake freight and Buffalo charges. Three week days after arrival and notice to the consignees were to be allowed to discharge the boat, after which time they were to pay a specified demurrage.

The boat and cargo arrived at New York, Friday, November 5, 1869, and notice thereof was given to the consignees on the same day, at ten minutes past twelve. On the next day and on Monday defendants were requested to give the boat dispatch, and on Tuesday, the 9th November, they were notified that unless the cargo was discharged it would be put in store. On the 9th, 5,000 bushels were removed from the boat by an elevator procured by defendants. After the delivery of that amount, the elevator stopped. Plaintiff's agent thereupon directed that if the boat was not discharged by six p. m., to take it to store. At about that hour, it not having been discharged, it was by plaintiff's order taken to Brooklyn, and the oats stored with one Barber, a warehouseman. In March, 1871, Barber delivered the possession of the oats to defendants upon their demand, they indemnifying against claim of the plaintiff.

Further facts appear in the opinion. Defendants had judgment, which was affirmed at General Term and the plaintiff appealed.

Henry W. Johnson, for plaintiff.

C. Van Santvoord, for defendants.

CHURCH, C. J. The decision in the case of the present plaintiff against Barber (56 N. Y., 544), disposed of some of the questions involved in this case. This was an action for conversion against the warehouseman for delivering the oats to the defendants, and it was here held that the proper construction of the bill of lading was to give the defendants, who were consignees, three full week days to discharge the cargo, and such reasonable time after