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what was theirs. While thus engaged, the unscheduled train in question came along and struck them both, injuring Solomon and killing Lackner. The New York & Long Branch Railroad Company, which owns the tracks, stations, and other parts of the roadbed, operates no trains of its own, but allows the Pennsylvania Railroad and the Central Railroad of New Jersey to use the property and to operate their trains thereon under an agreement that does not expire until 1987. The verdict has determined that the train gave no warning of its approach, and that Lackner was not guilty of contributory negligence.

[1] The District Court submitted the case to the jury on the theory that Lackner and the Pennsylvania Railroad were both licensees of the Long Branch Company, and therefore that the railroad owed Lackner the duty of ordinary care. If this theory be wrong, the judgment must be reversed, and accordingly we have examined the subject with care, and have reached the conclusion that the New Jersey cases support the position taken by the trial judge. In Schmidt v. Penna. R. Ř. (C. C. A. 3) 181 Fed. 83, 104 C. C. A. 251, this court had occasion to consider and apply the doctrine that prevails in that state concerning the duty owed by a railroad to a licensee. This decision, however, does not rule the present controversy, which we think resembles closely the recent case of Coyne. v. Penna. R. R., 87 N. J. Law, 257, 93 Atl. 595, decided in 1914 by the highest court of the state. Without detailing the facts of that case, it is enough to say that the Court of Errors and Appeals evidently had before it in one form or another the contents of the agreement now in question between the Long Branch Company, the Pennsylvania Railroad, and the Central Railroad, and held the Pennsylvania Railroad to be a licensee thereunder. As the decedent, Coyne, was also held to be a licensee, the court was of opinion that the general New Jersey doctrine (referred to in Schmidt v. Railroad) did not apply, but that the railroad owed the decedent the duty of reasonable care. We think we should follow this decision, although we may not be bound to do so, and the result is to sustain the ruling below on the principal question raised by the writ of error.

[ 21 On the question concerning the construction of the New Jersey act of 1869 on the subject of contributory negligence (P. L. 1869, p. 806, 3 Comp. Stat. N. J. p. 4245) we refer to Furey v. Railroad, 67 N. J. Law, 278, 51 Atl. 505, in support of the position that the act does not prohibit Lackner's representative from recovering.

The judgment is affirmed.

OPPENHEIMER et al. v. SAN ANTONIO LAND & IRRIGATION CO.,

Limited.
(Circuit Court of Appeals, Fifth Circuit. November 28, 1917.)

No. 3116.
Courts ww508(2-FEDERAL COURTS-ENJOINING SUIT IN STATE COURT-PRI-

ORITY OF JURISDICTION.

A federal court, which by its receiver has taken possession of real estate in a suit to foreclose a mortgage on the same, and has entered a decree for its sale, has exclusive ancillary jurisdiction to adjudicate all claims against the property, and may properly enjoin the prosecution by third persons in a state court of a suit to enforce an alleged prior lien

thereon. Appeal from the District Court of the United States for the Western District of Texas; W. R. Smith, Judge.

Ancillary suit in equity by Floyd McGown, as receiver of the San Antonio Land & Irrigation Company, Limited, against Jesse D. Oppenheimer, Abraham Lang, and Isaac Lang. Decree for complainant, and defendants appeal. Affirmed.

Under a decree of the United States District Court for the Western Dis. trict of Texas, entered in a suit brought in that court by the Empire Trust Company, trustee in a deed of trust securing bonds issued by the San Antonio Land & Irrigation Company, Limited, against the last-named company, Floyd McGown was in August, 1914, appointed receiver of all the properties claimed by that company, and took possession thereof, including the land with reference to which the appellants make the claims hereinafter stated. On January 29, 1917, a decree was rendered in that suit foreclosing the deed of trust upon properties set out in the decree, including the land just mentioned. On the 16th of April, 1917, the appellants filed in the district court of the Seventy-Third judicial district of the state of Texas against said McGown, as such receiver, and others, a suit in which they claimed the superior legal title to land described in a deed made by them, which reserved a vendor's lien for the unpaid part of the purchase money, and sought the recovery of that land, and prayed in the alternative that judgment be rendered in their favor for the balance due on the vendor's lien note and foreclosing the lien securing the same. By a supplemental and ancillary bill, filed by McGown, as receiver, in the suit, under a decree in which he was appointed, against the appellants, he prayed that the appellants be restrained from the further prosecution of their above-mentioned suit in the state court, from further interfering with the receiver's possession, management, and control of the property, and from further interfering with the court's possession and control of property held by its receiver. On the hearing of the cause a decree was rendered, ordering the issuance of the injunction prayed for. The appeal is from that decree.

T. T. Vanderhoeven, Sylvan Lang, B. A. Greathouse, and Don A. Bliss, all of San Antonio, Tex., for appellants.

Thomas H. Franklin, of San Antonio, Tex. (Denman, Franklin & McGown, of San Antonio, Tex., on the brief), for appellee.

Before WALKER and BATTS, Circuit Judges, and FOSTER, District Judge.

WALKER, Circuit Judge (after stating the facts as above). When the appellants brought their suit in the state court for the recovery of Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

land, or, in the alternative, for the foreclosure of a lien thereon, that land was in the custody of the United States District Court, being in the possession of its receiver appointed in a suit previously brought therein, in which suit the foreclosure of an asserted lien on that land was sought and had been decreed. Possession of that land by the United States court was necessary to the exercise of its jurisdiction. An effect of its so taking possession was a withdrawal of the property from the jurisdiction of all other courts. That court, during the continuance of its possession, has, as an incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all questions respecting the title, the possession, or the control of the property. Wabash Railroad v. Adelbert College, 208 U. S. 38, 54, 28 Sup. Ct. 182, 52 L. Ed. 379; State of Texas v. Palmer, 158 Fed. 705, 85 C. C. A. 603, 22 L. R. A. (N. S.) 316; Palmer v. Texas, 212 U. S. 118, 29 Sup. Ct. 230, 53 L. Ed. 435; White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. Ed. 67; Empire Trust Co. v. Brooks, 232 Fed. 641, 146 C. C. A. 567.

Provision for invoking the exercise of the ancillary jurisdiction mentioned was made in the foreclosure decree entered in the suit in which McGown was appointed receiver. A clause of that decree required the clerk of the court to issue at once notice to all persons having any claims against the San Antonio Land & Irrigation Company, Limited, or any of its properties, or who might claim any interest in any of its properties, to intervene in the suit upon such claims or demands within six months after the date of the decree. This shows that it was open to the appellants to assert in that court the claims which they were undertaking to have the state court pass upon.

The appellants, in their answer to the receiver's supplemental and ancillary bill, disclaimed any intention of interfering with the possession of the receiver, or of the court which appointed him, without that court's consent and order. There is a similar disclaimer in the argument made in their behalf in this court. But it is not made to appear that it was disclosed to the state court that it was not expected to undertake the enforcement of the judgment it was asked to render. The disclaimers mentioned do not make the bringing and prosecution of the suit in the state court any the less an attempt to have the controversy which that suit raised adjudicated by a court other than the one having, as a result of its previously acquired custody or possession of the subject-matter in controversy, exclusive jurisdiction to pass upon the claims asserted. Obviously the purpose was to have those claims adjudicated by the state court, and to rely upon that adjudication as binding and conclusive, in whatever other tribunal it might be invoked. The United States court, having first obtained jurisdiction of the matter in controversy, was not in error in restraining proceedings in another court involving the same subject-matter. Such restraint was appropriate to prevent the defeat or impairment of the United States court's exclusive jurisdiction. Julian v. Central Trust Co., 193 U. S. 93, 24 Sup. Ct. 399, 48 L. Ed. 629.

The decree is affirmed.

BINGHAM MINES CO. V. BIANCO.
(Circuit Court of Appeals, Eighth Circuit. November 7, 1917.)

No. 4818.

1. DEATH 32-ACTIONS_STATUTE.

Under Comp. Laws Utah, 1907, § 2912, giving a right of action for wrongful death for the benefit of widow and minor children, an action. the statute being general in its terms and containing nothing indicating an intention to restrict its application, may be maintained for the death of one occurring in Utah, though the beneficiaries were nonresident aliens,

subjects of a foreign power. 2. MASTER AND SERVANT 270(7)—INJURIES TO SERVANT-REPAIRS.

In an action for injuries to a servant alleged to have been caused by defective machinery, appliances, or places of work, evidence of repairs or alterations subsequent to the accident is inadmissible to show the mas

ter's negligence. 3. EVIDENCE @w116MASTER AND SERVANT 270(7)–COMPETENCY-COLLAT

ERAL Facts.

While collateral or irrelevant facts that fix the time at which a relevant fact occurred are admissible in evidence so far as necessary, that rule cannot be employed as a pretext for the admission of evidence in itself incompetent and prejudicial; hence in an action for the wrongful death of a mine worker, where it was contended that he came in contact with an overhead trolley wire heavily charged, which was negligently maintained so near the floor level as to be dangerous, a witness testifying as to measurements of the height of the wire should not be interrogated in such a manner as to bring out the fact that when he made the measure ments after the accident he made repairs raising the wire, for that inject. ed incompetent and prejudicial evidence into the case.

In Error to the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.

Action by Domenico Bianco, administrator of the estate of James Ozzello, deceased, against the Bingham Mines Company, a corporation. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

Mahlon E. Wilson, of Salt Lake City, Utah (King, Nibley & Farnsworth, of Salt Lake City, Utah, on the brief), for plaintiff in error.

Culbert L. Olson, of Salt Lake City, Utah (A. J. Weber, of Salt Lake City, Utah, on the brief), for defendant in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

HOOK, Circuit Judge. [1] The administrator of the estate of James Ozzello, deceased, recovered a verdict and judgment against the Bingham Mines Company for negligently causing the death of his intestate. The action was brought under a statute of Utah (section 2912) for the benefit of the widow and minor children. It is urged by defendant that since the beneficiaries are nonresident aliens, subjects of the kingdom of Italy, the right conferred by the statute does not

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

inure to them, but is for the exclusive benefit of the residents and citizens of this country. The statute is general in its terms and contains nothing indicating an intention so to restrict its application. The weight of authority is against defendant's contention. McGovern v. Railway, 235 U. Š. 389, 35 Sup. Ct. 127, 59 L. Ed. 283; Patek v: American Smelting & Refining Co., 83 C. C. A. 284, 154 Fed. 190, 21 L. R. A. (N. S.) 273.

[2, 3] The deceased was in defendant's service as a mucker, and at the time of the accident was at work in an underground drift in its mine. No one witnessed his death, and the proof of the cause was drawn largely from the surroundings and the condition of the body. The plaintiff claimed he came in contact with an overhead trolley wire heavily charged with electricity which was negligently maintained so low, so near the floor level of the entry, as to be dangerous. The defendant claimed that the wire, with which the deceased had no duty, was at a height that afforded entire safety. The height of the wire at the time and place of the accident was an important issue at the trial. The plaintiff produced a witness who was in defendant's service, and who testified to measurements he made shortly after the accident. He was also allowed over defendant's objection to testify that at the time of the measurements he also made repairs and changes in the structure, altering its condition in that particular. Counsel contended that the evidence was proper to show the time when the measurements of the original condition were made, and it was so admitted.

It is a familiar rule that collateral or irrelevant facts that fix the time at which a relevant fact occurred are admissible in evidence so far as necessary for the purpose, but it cannot be employed as a pretext for the admission of evidence that is in itself incompetent and prejudicial. In the case at bar the time when the witness made the measurements could have been elicited by simple and direct questions so confined in their scope. Proof of or reference to the making of changes was wholly unnecessary, yet by repeated questions the fact was emphasized and made prominent. Not only was it unnecessary, but the evidence so brought in was distinctly prejudicial and incompetent upon the issue being tried. It is the settled doctrine of the courts of the United States that in actions for injuries alleged to have been caused by defective machinery, appliances, or places of work evidence of subsequent alterations or repairs has no legitimate tendency to prove negligence at the time of the accident and is calculated to prejudice the defendant. Columbia Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405; Atchison, etc., R. Co. v. Parker, 5 C. C. A. 222, 55 Fed. 595; Motey v. Pickle Marble & Granite Co., 20 C. C. A. 366, 74 Fed. 155.

The other questions presented by the assignments of error may not arise again.

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

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