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PLAZUELA SUGAR CO. V. PASTORIZA et al.

(two cases).

(Circuit Court of Appeals, First Circuit. August 25, 1917.)

Nos. 1262, 1263.. 1. COUBTS O 405(1)—CIRCUIT COURT OF APPEALS—DECISIONS APPEALABLESCOPE OF REMEDY,

Where plaintiffs' complaint, seeking a judgment enjoining the operation of a railroad constructed upon their lands by defendant and an order directing removal, was dismissed in the district court, but the Supreme Court of Porto Rico, on appeal, reversed the district court's judgment, and entered judgment in accordance with the prayers of the complaint, an appeal to the Circuit Court of Appeals for the First Circuit is an appropriate procedure to review the judgment of the Supreme Court of Porto Rico, and a writ of error to the judgment must be dis

missed. 2. RAILROADS 65—RIGHT OF WAY-RIGHT TO.

Where defendant entered on plaintiffs' land and constructed a railroad, without obtaining any grant of a right of way or paying any consideration, and in reliance solely on plaintiffs' alleged oral permission and their acquiescence, defendant did not establish any right to continue the operation, but at most should be treated as a licensee under a license revocable at pleasure, and on plaintiffs' revocation of the license

the railroad may be directed removed. 3. Cotets 406(1)—SUPREME COURT OF TERRITORY-REVIEW-DETERMINATION OF LOWER COURT.

In reviewing a judgment of the Supreme Court of Porto Rico, in an action where the local law governs, the Circuit Court of Appeals must uphold the decision of the lower court, unless convinced that clear error

was committed. 4. ESTOPPEL 93(4)— EQUITABLE ESTOPPEL-How RAISED.

Though plaintiffs gave defendant an oral license to construct a railroad on their lands, and allowed the construction without objection, making no objection to the operation of such road until after it had been continued for over five years, plaintiffs' acquiescence did not, the railroad not being used as a common carrier, but solely for defendant's benetit, ripen into an equitable estoppel, precluding plaintiffs from thereafter requiring the removal of the road. Appeal from and in Error to the Supreme Court of Porto Rico.

Action by José Maria Torres Pastoriza and others against Plazuela Sugar Company, begun in the district court for Porto Rico, where the complaint was dismissed. On appeal to the Supreme Court for Porto Rico, there was a judgment for plaintiffs, and defendant appeals and brings error. Judgment appealed from affirmed, and writ of error dismissed.

Joseph B. Jacobs, of Boston, Mass. (Cay. Coll Cuchi, of San Juan, Porto Rico, and Jacobs & Jacobs, of Boston, Mass., on the brief), for appellant and plaintiff in error.

Otto Schoenrich, of New York City (Curtis, Mallet-Prevost & Colt, of New York City, on the brief), for appellees and defendants in error.

Before DODGE and BINGHAM, Circuit Judges, and BROWN, District Judge. For other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes

DODGE, Circuit Judge. Both these proceedings seek the reversal of a judgment rendered by the Porto Rican Supreme Court July 28, 1916. The judgment was rendered in a case originally brought by the appellees and defendants in error here, hereinafter called plaintiffs, in the district court of Arecibo, against the appellant and plaintiff in error, hereinafter called defendant.

There is no dispute that the defendant, a corporation operating a sugar mill in Arecibo, had in 1907 or 1908 built a private railroad, which crossed lands owned by the plaintiffs, and had since operated said railroad by running trains over it, which carried sugar cane to said factory across the plaintiffs' lands. Alleging that they had never "executed any deed of servitude on behalf of the defendant corporation," and had repeatedly requested the defendant to discontinue running said trains and remove said tracks from their lands, the plaintiffs' complaint asked the court of first instance to declare that “no servitude existed on behalf of any estates of the defendant,” to enjoin further operation of the railroad upon their lands and to order removal of the tracks therefrom.

[1] From the dismissal of their complaint by said district court, the plaintiffs appealed to the Supreme Court, which reversed the judgment below and entered judgment in accordance with the prayers of the complaint, which is the judgment now before us for review. We see no reason to doubt that it is properly here under the appeal. The assignments of error relied on are the same in both proceedings.

[2,3] The defendant showed no written grant from the plaintiffs of any right whatever to use their land, nor anything in writing evidencing their consent, either to the original building of the railroad within their premises or to its subsequent maintenance there. The defendant relied solely on alleged oral consent by the plaintiffs to the building of the railroad and their subsequent acquiescence without objection in its operation. It did not appear that the plaintiffs ever requested the building of said railroad or were in any way benefited thereby. The oral consent relied on was given upon a request by the defendant for permission to lay its rails over the premises. No payment or other recompense, either for permission to lay the rails or to maintain them, was ever offered to or received by the plaintiffs, so far as shown. The Supreme Court held that there had been no consideration sufficient to give the defendant the rights which it asserted.

Upon the evidence, we find no reason for differing from the conclusions adopted by the Supreme Court. The plaintiffs, in our opinion, sufficiently established their right to the relief sought. It could not justly be said that the defendant had ever acquired rights against the plaintiffs beyond those of a licensee under a license revokable at their pleasure. The question was, of course, to be determined according to the law of Porto Rico; and, so far as that law is involved, we must uphold the decision of the court below, unless convinced that clear error was committed by it. Cardona v. Quinones, 240 U. S. 83, 88, 36 Sup. Ct. 346, 60 L. Ed. 538. Such conviction is wholly wanting in the present case.

[4] That the plaintiffs became equitably estopped to revoke the license given when the railroad was built by their acquiescence in the defendant's subsequent use of their land, under the circumstances shown, we are entirely unable to believe. No public right or convenience is involved. We cannot hold that the plaintiffs have forfeited any rights belonging to them as owners of their land, merely because they have been accommodating enough to let the defendant use it as above, without pay, for its own benefit, during the six or seven years preceding their institution of this suit.

In No. 1262, the judgment appealed from is affirmed, and the appellees recover their costs of appeal.

In No. 1263, the writ of error is dismissed, without costs.

BY

KANSAS CITY, C. & S. RY. CO. V. SHOEMAKER. *
(Circuit Court of Appeals, Eighth Circuit. September 3, 1917.)

No. 4922. 1. TEIAL 260(8)—INSTRUCTIONS_REQUESTS COVERED INSTRUCTIONS

GIVEN.

In a railway employé's action for injuries sustained in a collision at a highway crossing between a railway motorcar and an automobile, the court charged that if the operator of the motorcar saw or by the exercise of ordinary care and prudence might have seen and anticipated the approach of the motorcar, and avoided the collision, he was negligent, that the jury must judge whether he saw or might have seen the automobile in time to stop and avoid the accident, and that it was incumbent on him merely to take such observation as would apprise him of the situation that there was or was likely to be impending danger, to such an extent that it would become his duty to exercise ordinary care to avoid it, and that, if he did not exercise such care, he was negligent. Held, that this did not cover defendant's requested instruction that the operator was under no obligation to stop because he saw or might have seen the automobile approaching, and that he had a right to assume that

the automobile driver would stop, and not attempt to cross the track. 2. MASTER AND SERVANT 137(3), 293(19)-INJURIES TO EMPLOYÉ-OPERATION OF RAILROADS-INSTRUCTION.

The requested charge stated a correct rule of law and should have been given. In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.

Action by Harvey H. Shoemaker against the Kansas City, Clinton & Springfield Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.

John H. Lucas, of Kansas City, Mo. (William C. Lucas, of Kansas City, Mo., on the brief), for plaintiff in error.

H. M. Langworthy, of Kansas City, Mo. (J. C. Hargus, O. H. Dean, and W. D. McLeod, all of Kansas City, Mo., on the brief), for defendant in error. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*Rehearing denied December 19, 1917.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

CARLAND, Circuit Judge. This is an action by Shoemaker against the railway company to recover damages for a personal injury received by him while riding upon motorcar of the company, which was being driven by another employé of the company by the name of Green. It is conceded that the action arises under the act of Congress relating to the liability of common carriers by railroads to their employés in certain cases (35 Stat. 65) and the amendments thereto (36 Stat. 291). Comp. St. 1916, $$ 8657-8665.

The injury to Shoemaker was caused by a collision between the motorcar, as it is called in the evidence, with an automobile at a public highway crossing. The negligence alleged in the petition is that of Green, the employé of the railway company in charge of the motorcar, saw or by the exercise of ordinary care could have seen that the automobile was approaching the crossing, and that said motorcar was liable to strike said automobile; that notwithstanding this fact Green continued to operate the motorcar at a high, dangerous, and reckless rate of speed, and failed to exercise ordinary care to reduce the speed of said motorcar, or stop the same, so as to prevent striking said automobile. There was a verdict against the railway company, and it has brought the case here assigning error.

[1] At the close of the evidence counsel for the railway company requested the court to charge the jury as follows:

"The operator of the handcar was under no obligations to stop his car be cause he saw, or might have seen, the automobile approaching the crossing. He had a right to presume that the driver of the automobile would stop, and not attempt to cross the railroad track; and the mere fact, if it be a fact, that the operator of the car saw the automobile approaching the track is not suflicient to warrant a recovery in this case.”

The court refused to give this instruction, for the reason that it was covered by the general charge, to which ruling counsel for the railway company excepted. After the court had charged the jury, the following remarks passed between court and counsel in the presence of the jury:

“The defendant further excepts to the failure of the court to charge the jury that no duty devolved upon the defendant, or its employés, to stop, or attempt to stop, the car until such time as there was peril, and that, under the evidence, there was no peril in the case until the witness Reeding, with his automobile, attempted to cross the tracks.

"The Court: The court thought it had made that clear, but will state that, in going along there, you must judge whether the employé, Green, at the time saw, or by the exercise of ordinary diligence might have seen, the approaching automobile, in such time as, with the instrumentalities at his hand, to have stopped and avoided the accident.

"Mr. Lucas: I think your honor did not get the point. The point of the objection is that the charge is misleading, in that the jury may assume, from the charge, that Green, the witness, was required to take observation of the fact that the automobile was approaching the track. He was under no duty to stop his car, or attempt to stop his car, until such time as the automobile was in such close proximity to the track that he saw, or could have seen, that, if he didn't stop it, there would be a collision.

“The Court: The court intended the jury to understand that it was incumbent upon the defendant merely to take such observation as would apprise him of the situation, that there was, or was likely to be, impending danger there, to such an extent that it would become his duty to exercise ordinary care and caution to avoid it, and that, if you find that, at any point, that was true, and that the defendant, through its employé, with the means at band, did not exercise all that care and caution that an ordinarily careful and prudent man would to avoid the accident, then, of course, that would be negligence on his part; otherwise, if he did do all he could do under the circumstances.”

The language used by the court was in line with the general instruction previously given by the court, which was to the effect that if Green saw or by the exercise of ordinary care and prudence might have seen and anticipated the approach of the motorcar, and with the means and instrumentalities at his command, might have avoided the collision, then he was guilty of negligence. In other words, whether Green was negligent or not was made to depend upon whether he by the exercise of ordinary care might have seen and anticipated the approach of the car. The element that Green had a right to presume that the driver of the automobile would stop, and not attempt to cross the railroad track, which is contained in the requested instruction, was entirely omitted from the general charge.

[2] The charge requested stated a correct rule of law applicable to the evidence, and should have been given. A majority of the court are also of the opinion that the motion for a directed verdict in favor of the railway company should have been given, but all are agreed that, if the case was one for the jury, then the refusal to charge as above requested, was error.

Judgment reversed, and a new trial ordered.

PFEIL V. JAMISON.

(Circuit Court of Appeals, Third Circuit. October 11, 1917.)

No. 2238.

APPEAL AND ERROR 1106(4)—DETERMINATION-REVERSAL.

Where an action for damages for false imprisonment was heard on the pleadings, and the questions involving police powers of a large municipality in times of widespread disorder could be far more intelligently disposed of when the evidence had been heard and was before the appellate court, the judgment will be reversed, and the case remanded for disposition on the evidence. In Error to the District Court of the United States for the Eastern District of Pennsylvania.

Action by Melvin Pfeil, a citizen and resident of the state of Ohio, against Samuel C. Jamison, a citizen and resident of the state of Pennsylvania. There was a judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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