Lambeth v. North Carolina R. R. Co.

which, therefore, he took. We do not see that it can make any difference whether the adjudication of bankruptcy was before or after the commencement of the present term of this court. So long as the fund came lawfully into this court it remains there under its control, and subject to be applied according to its usual practice. We do not think that it was the intention of the bankrupt act to deprive the ordinary courts of that power. It is not the giving of a preference to one creditor of the bankrupt over another; but merely the giving effect to an equity existing by virtue of the long settled regular practice of the courts.

The clerk will retain the costs due his office out of the fund, and pay the residue to the assignee of the bankrupt.

LAMBETH, administrator, appellant, v. NORTH CAROLINA R. R. Co.

(66 N. C. 494.)

Common carrier — injury to passenger in alighting from railway train. Contributory negligence.

Plaintiff's intestate was killed in alighting from defendant's railway train, while moving at the rate of from two to four miles per hour. It appeared that the conductor went with the intestate, who was a passenger, out on the platform, to assist him to alight. Held, that "if the intestate, without any direction from the conductor, voluntarily incurred danger by jumping off the train while in motion, the plaintiff was not entitled to recover; but if the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the conductor, then the resulting injury was not caused by contrib utory negligence or want of care."

ACTION for the negligent killing of one Brown, plaintiff's intestate, by defendant, a common carrier by railroad. The intestate was killed in getting off the cars while in motion. At the trial much evidence was given, but only questions of law are considered in this court. Plaintiff requested the judge to charge "that if the jury should find that the defendant did not stop the train alongside of the platform, and that the conductor while passing the platform, and when the cars were moving at from two to four miles per hour,

Lambeth v. North Carolina R. R. Co.

directed Brown to alight, and he obeyed the direction, he was justified in doing so, and his act in law is not contributory negligence, hindering a recovery." This request was refused, and the judge charged that "any alightment from the cars when moving was contributory/negligence, and in law" prevented a recovery.

Verdict and judgment for defendant. Plaintiff appealed.

Dillard & Gilmer, for appellant.

J. T. Morehead, Jr., for appellee.

DICK, J. The intestate of the plaintiff was a passenger under the charge of the agents of the defendant, and he was killed in getting off the train. The policy of the law, which is ever solicitous for the protection of human life, requires common carriers who have charge of the safety of passengers to use a high degree of care, to guard against probable injury. As the intestate was a passenger on the train, it was the duty of the defendant to transport and place him safely at his point of destination.

If the injury sustained was caused by a want of proper care on the part of the agents of the defendant in the performance of this duty, it is prima facie responsible in damages to the plaintiff.

The principal defense relied on in the court below was, that the intestate, by his own negligence or misconduct, contributed to cause the injury sustained. The act of the intestate, in jumping off the cars while they were in motion at the rate of from two to four miles per hour, was the proximate cause of the injury, and the question is, whether he exercised ordinary care under the circumstances. Ordinary care, in this case, is that degree of care which may have been reasonably expected from a sensible person in the situation of the intestate. He had a right to expect that the defendant had employed a skillful and prudent conductor, who would not expose passengers to dangerous risks, and who had experience and knowledge in his business sufficient to correctly advise and direct passengers as to the proper time and manner of alighting safely from the train.

When the usual signal was given for stopping or slackening the speed of the train, the conductor went with the intestate and Mr. Anthony out on the platform of the car to assist them in getting off safely. If the intestate, without any direction from the con

Lambeth v. North Carolina R. R. Co.

ductor, voluntarily incurred danger by jumping off the train while in motion, the plaintiff is not entitled to recover. If the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the manager of the train, then the resulting injury was not caused by contributory negligence or a want of ordinary care. Shearman & Redf. on Neg., ch. 15 and 27.

The circumstances attending the injury are given in the testimony of Mr. Anthony and the conductor, who were both present. witnessed the occurrence, and had equal opportunity of knowing the facts. Their testimony was conflicting in material points, and it was the province of the jury to determine the truth of the matter, and render a verdict in accordance with the instructions of his honor on the questions of law arising upon the ascertained facts. We think his honor erred in refusing to give the first instructions asked for by the counsel of the plaintiff, for, if the testimony of Mr. Anthony is to be believed, there was no such contributory negligence on the part of the intestate as to prevent a recovery in this action.

For this error there must be a venire de novo, and it is not necessary for us to express an opinion as to the rights of the parties, if the jury should find that the testimony of the conductor gives the iruth of the transaction.

Let this be certified.

Venire de novo.

Bailment-conversion by bailee-conflicting claims-property taken in exeon

tion.

Plaintiff sent his goods, in charge of G., to defendant's warehouse for storage. G. put his name on the goods, and left a written notice with defendant not to give them up without his consent. Plaintiff then sent a written notice tc defendant saying: "Please hold the same, subject only to my written order The property is mine." Soon after, plaintiff demanded the goods of defend ant, who refused to deliver them up, even after plaintiff had offered him a bond of indemnity, and to pay all charges. Subsequently a sheriff levied on the goods, under two executions against G., and, on the following day, an execution against plaintiff came into the sheriff's hands. The goods were sold on one of the executions against G., and the proceeds applied in pay. ment thereof. Held, that defendant was liable for the value of the goods on the ground that he ought to have given up the goods on demand and offer of indemnity by plaintiff, or commenced a suit by bill of interpleader to determine the respective rights of plaintiff and G.; and that, as the goods were in fact plaintiff's, the levy and sale of them under an execution against G. did not mitigate the damages, notwithstanding the fact that the sheriff also held an execution against plaintiff, under which he did nothing.

ACTION to recover the value of goods stored in defendant's wareThe case was referred, and, from the report of the referee,

ouse.

Ball v. Liney.

the following facts appear: On the 31st of March, 1862, plaintiff sent goods belonging to him, in charge of one Gregory, to defendant's warehouse for storage. Gregory marked the goods with his initials, and subsequently made out a list of the articles, and left it with defendant. The list began as follows:

"A list of articles stored by George G. Gregory, agent, with A. Liney, River street, Troy, N. Y. The said goods not to be given up without the consent of said George G. Gregory."

Soon after the goods were received on storage by defendant, plaintiff called on defendant and informed him that the goods belonged to him, and that he desired defendant to keep them on storage until the further order of plaintiff. And, on the 28th of April, 1862, plaintiff gave defendant the following written notice:

"MR. A. LINEY:

"Dear Sir: Mr. Gregory has furnished me with an invoice of the goods in storage in your loft, and you will please hold the same subject only to my written order. The property is mine.

"Yours,

"M. BALL."

Defendant received the notice and soon after told plaintiff he would act upon it. On the 15th of May, 1862, plaintiff demanded the goods, offering to pay charges and to give defendant a bond of indemnity upon their removal. The demand was refused, and plaintiff again made similar demands and offers from that time to August 5, 1862, all of which were refused, Gregory having forbidden defendant to give up the goods. On the 6th of August, 1862, the sheriff of Rensselaer county levied upon the goods, having in his hands two executions against Gregory, one in faver of H. B. Harvey and the other in favor of J. R. Jaffray. The goods were taken by the sheriff without objection from defendant, and on the following day an execution against plaintiff, in favor of M. T. Clough, came into the sheriff's hands. The sheriff advertised to sell the interest of Gregory and plaintiff in the goods, but at the sale the sheriff stated that he would sell the goods under the Harvey execution against Gregory. The goods were sold and the proceeds applied upon the Harvey execution, and the sheriff returned the execution in favor of Clough against plaintiff unsatisfied. The referee found in favor of plaintiff. The general term granted a new trial, whereupon plaintiff appealed to this court.