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view, as we are inclined to agree with the trial judge that "there is no evidence in this case of any fact which prevents the running of the statute of limitations.” The question therefore is (1) when did the statute of limitations begin to run, and (2) what statute was applicable ? The statute began to run when the cause of action arose, and the cause of action arose when the damage occurred. Then action might have been brought. The plaintiff claimed that the damage began when the combination was created in 1899, and continued until the bringing of suit on June 23, 1911; hence any limitation upon the action was a matter of importance to the plaintiff. Recognizing that to an action under the Sherman Act the statute of limitations of the state where the action is brought, applies. (Chattanooga Foundry and Pipe Works v. Atlanta, 203 U. S. 390, 27 Sup. Ct. 65, 51 L. Ed. 241), the receiver for the Bluefields Company gave consideration to the question where to bring his action, and was induced by the liberality of the Pennsylvania Act (Purdon's Dig. [13th Ed.] p. 2282) to bring it in a district of Pennsylvania, as shown by his petition to the District Court for Louisiana, for leave to intervene or to bring suit in Pennsylvania, wherein he stated, that there were “strong and controlling reasons for prosecuting such suit * * * in the state of Pennsylvania instead of in this district (Louisiana), * * * one of such reasons * * * being that it will be claimed * * * that in Louisiana recovery can be had only for such damages as have accrued within one year from the date of bringing suit on account of the laws of prescriptions of limitations of actions, whereas he is advised that in said Eastern district of Pennsylvania, recovery may be had for damages accruing within six years.” In bringing this action from Louisiana to Pennsylvania for the purpose of procuring the advantages of the statute of limitations of the latter state, the plaintiff was met by the Pennsylvania Act of June 26, 1895 (P. L. 375), and was confronted by one of its provisions, found in acts of limitations of many states, that:

“When a cause of action has been fully barred by the laws of the state or country in which it arose, such bar shall be a complete defense to an action thereon brought in any of the courts of this commonwealth.”

It is a very close question whether that provision of the Pennsylvania Act did not throw the plaintiff back upon the statute of limitations of Louisiana as the place where the damage was done and the cause of action arose. Under the statute of that state, the limitation in actions in tort is one year. Civil Code, arts. 3536, 3537; Warner v. New Orleans and Carrollton R. R., 104 La. 536, 29 South. 226. The trial court however did not apply the Louisiana one year limitation by force of the recited provision of the Pennsylvania Act, but applied the six year limitation of the Pennsylvania Act. If the court's refusal to apply the one year Louisiana limitation by direction of the Pennsyl-. vania statute was error, it was beneficial rather than prejudicial to the plaintiff and is no ground for reversal. The only question is whether the six year limitation of the Pennsylvania Act was properly applied. During the period in question the plaintiff was undoubtedly under the stock control of the defendant, which elected its officers and directed its affairs. Yet, until this suit was contemplated, we find no evidence

of an attempt or even of a desire by the plaintiff or by any of its stockholders to sue the defendant for the manner it exercised its control, or of any act or attempt by the defendant to hinder or prevent the institution of such a suit. The naked fact of control, unaccompanied by acts preventing or at least discouraging the bringing of an action, cannot suspend the running of a statute of limitations. We are of opinion that the defendant did not suffer from error in having applied to its case the six year limitation of the Pennsylvania Act.

After a full and painstaking consideration of the many errors assigned in this very considerable record, we are of opinion that the trial court committed no reversible error. · The judgment below is affirmed.

DERNBERGER v. BALTIMORE & 0. R. CO.

(Circuit Court of Appeals, Fourth Circuit. May 17, 1917.)

No. 1474.

1. TRIAL Cw142QUESTIONS FOR JURY-INFERENCES FROM EVIDENCE.

Whenever the evidence is such that reasonable mren may reasonably differ as to the inferences to be drawn therefrom, the case should be submitted to the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 337.) 2. TRIAL 168_DIRECTION OF VERDICT-INFERENCES FROM EVIDENCE.

Where from the evidence only one inference may be reasonably drawn, it is the imperative duty of the court to direct a verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 341, 376-380.] 3. TRIAL 168-DIRECTION OF VERDICT-WHEN WARRANTED.

It is the duty of the trial court to direct a verdict for plaintiff or defendant, as to the court may seem proper, where the evidence is uncontradicted, or of such conclusive character that the court in the exercise of a sound judicial discretion would feel impelled to set aside a verdict in opposition to it.,

[Ed. Note.-For other cases, see Trial, Cent, Dig. $$ 341, 376-380.] 4. RAILROADS M328(1)— CROSSING ACCIDENT--CONTRIBUTORY NEGLIGENCE

OBSTRUCTION OF VIEW.

Where at a railroad crossing there is a heavy growth of weeds, underbrush, etc., so as to obscure the view of the track in the direction from which a train comes, such condition is a warning to a driver on the highway of the imminence of danger, and in the nature of an admonition to exercise reasonable caution in approaching the track.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1057, 1060,

1069.] 5. RAILROADSC 348(8)—CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCEEVIDENCE.

In an action for death in a crossing accident, evidence held to show that, from a point 150 feet from the crossing, deceased drove towards and upon the crossing without looking or listening, and apparently oblivious to the fact that he might encounter a train in so doing.

[Ed. Note. For other cases, see Railroads, Cent. Dig. & 1146.) For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

6. RAILROADS 3 35(3)-CROSSING ACCIDENTS–CONTRIBUTORY NEGLIGENCE

EFFECT.

The failure of a railroad train to give a signal in approaching a crossing, by ringing the bell or blowing the whistle, as required by statute, does not make the railway company liable to one who drives upon the crossing without looking or listening for trains.

[Ed. Note.--For other cases, see Railroads, Cent. Dig. 8 1087.] 7. RAILROADS 348(9)—CROSSING ACCIDENTS-CONTRIBUTORY NEGLIGENCE

WEIGHT OF EVIDENCE.

In an action for death in a crossing accident, evidence as to the space intervening between obstructions and the crossing, and the distance one could have seen along the track in the direction from which the train came, held sufficient to show that, if deceased had looked and listened before going upon the crossing, lie could have seen or heard the approach: ing train in ample time to avoid the accident.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. $ 1147.] 8. Courts Ow368—FEDERAL COURTS-STATE LAWS As RULES OF DECISION.

If a decision of a state court overruled prior decisions, a federal court was not bound by such decision as to a cause of action which accrued. prior to the date of its rendition.

[Ed. Note.-For other cases, see Courts, Cent. Dig. $ 951.] 9. COURTS C.370—FEDERAL COURTS-STATE LAW'S As RULES OF DECISION.

In the absence of a well-established rule by the state court, the federal court is warranted in forming its independent judgment.

[Ed. Note.--For other cases, see Courts, Cent. Dig. 88 953, 95342.] 10. RAILROADS Cw328(4)–CROSSING ACCIDENTS-CONTRIBUTORY NEGLIGENCEOBSTRUCTION OF VIEW.

Where, notwithstanding obstructions to the view of approaching trains, a driver on a highway could have seen or heard an approaching train in ample time to avoid an accident, if he had looked and listened, but, from a point 150 feet from the crossing, he drove towards and upon the crossing without looking and listening, apparently oblivious to the danger, he did not exercise the care that a reasonable man would take for his own protection, and there could be no recovery for his death.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 8 1061.]

In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.

Action by Martha Dernberger, administratrix of the estate of Benjamin Dernberger, deceased, against the Baltimore & Ohio Railway Company. From a judgment for defendant on a directed verdict (234 Fed. 405), plaintiff brings error. Affirmed.

C. M. Hanna and Reese Blizzard, both of Parkersburg, W. Va. (R. E. Bills, of Parkersburg, W. Va., on the briefs), for plaintiff in error.

George M. Hoffheimer, of Clarksburg, W. Va., and B. M. Ambler, of Parkersburg, W. Va. (J. W. Vandervort and Van Winkle & Ambler, all of Parkersburg, W. Va., on the briefs), for defendant in error. · E. G. Smith and Stephen G. Jackson, both of Clarksburg, W. Va., amici curiæ. Before PRITCHARD, KNAPP, and WOODS, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

PRITCHARD, Circuit Judge. This action was instituted in the District Court of the United States for the Northern District of West Virginia by Martha Dernberger, administratrix of Benjamin Dernberger, deceased, against the Baltimore & Ohio Railroad Company, in recover damages for alleged injuries sustained by Benjamin Dernberger at the hands of defendant in error, under chapter 103, section 3488, of the Code of West Virginia, which is in the following language:

Wheperer the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circunrstances as amount in law to murder in the first or second degree, or manslaughter."

The case is now before us on a writ of error. The plaintiff in erfor will be referred to as plaintiff, and the defendant in error as defendant; such being the relative positions the parties occupied in the court below.

An action of this kind always presents points more or less difficult of solution, involving as it does primarily on the one hand the question as to whether the alleged injuries of the plaintiff were occasioned by the negligence of the railroad company, or whether on the other hand the plaintiff by his negligence contributed to his own injury to such an extent as to warrant the trial judge in holding as a matter of law that the defendant upon the whole evidence is entitled to have the court instruct the jury to return a verdict in its favor. So much has been written in regard to this question that it would be impractical to undertake to distinguish all the cases decided by the different courts of the several circuits, as well as the courts of last resort of the states, and relied upon by counsel for the respective parties. Therefore, we shall confine our discussion to what we deem to be some of the controlling cases.

Counsel for plaintiff's intestate have filed four briefs, counsel for defendant five, and counsel as amici curiæ two. While the briefs thus filed are voluminous, we greatly appreciate the industry and skill displayed by counsel in attempting to throw as much light as possible upon a proposition which is extremely complicated when we come to apply the law to the facts as testified to by the witnesses in the court below. It is earnestly insisted by counsel for plaintiff that the court below erred in directing a verdict in favor of the defendant; in other words, that the death of plaintiff's intestate was due to the negligence of the defendant in failing to give a signal while approaching the crossing as required by the statute of West Virginia.

[1-3] Counsel earnestly contend that the conflict of evidence in this case is such that the court below should have submitted the determination of the same to the jury. The rule is that, whenever the evidence is such that reasonable men may reasonably differ as to the inferences to be drawn therefrom, the case should be submitted to the jury. While this is true, it is well settled that where, from the evidence, only one inference may be reasonably drawn, it is the imperative duty of the court as a matter of law to direct a verdict. In other words, it is the duty of the trial court to.direct a verdict for the plaintiff or defendant, as to the court may seem proper, where the evidence is uncontradicted, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would feel impelled to set aside a verdict in opposition to it. Merchants' Bank v. State Bank, 10 Wall. (77 U. S.) 604, 19 L. Ed. 1008; Delaware, Lackawanna & Western Railroad Company v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Southern Pacific Company v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485; Zilbersher v. Pennsylvania R. Co., 208 Fed. 280, 125 C. C. A. 480; Union Pacific Railway Company v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38.L. Ed. 434; Elliott v. Chicago, Milwaukee & St. Paul Railway Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068.

An examination of the cases cited will show that the court not only had the power, but it is its duty in cases like the one at bar, as well as all other cases involving a trial by jury, to direct a verdict whenever the facts are such as to warrant the same. Mr. Justice Swayne, in the case of Meguire v. Corwine, 101 U. S. 108, 25 L. Ed. 899, in referring to this point says:

"A judge has no right to submit a question where the state of the evidence forbids it.”

In the case of Southern Pacific Railway Company v. Pool, supra, Chief Justice White, who was then Associate Justice, among other things, said:

"There can be no doubt where evidence is conflicting that it is the province of the jury to determine, from such evidence, the proof which constitutes negligence. There is also no doubt, where the facts are undisputed or clearly preponderant, that the question of negligence is one of law, Union Pacific Railway Company v. McDonald, 152 U. S. 262, 283 [14 Sup. Ct. 619, 38 L, Ed. 134). The rule is thus announced in that case: “Upon the question of negligence * * * the court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Delaware, Lackawanna, etc., Railroad v. Converse, 139 U. S. 469, 472 [11 Sup. Ct. 569, 35 L, Ed. 213), and authorities there cited; Elliott v. Chicago, Milwaukee & St. Paul Railway, 150 U. S. 245 [14 Sup. Ct. 85, 37 L. Ed. 1068); Anderson County Commissioners v. Beal, 113 U. S. 227, 241 [5 Sup. Ct. 433, 28 L. Ed. 966).'"

This being the rule, the question arises as to whether the facts as established in the court below were such as to warrant the learned judge who heard this case in directing a verdict in favor of the defendant.

It is insisted by counsel for defendant that the evidence brings this case clearly within the rule announced in Neininger v. Cowan et al., 101 Fed. 787, 42 C. C. A. 20; Beyel v. Newport News & M. V. R. Co., 34 W. Va. 538, 12 S. E. 532; Horn v. Baltimore & O. R. Co., 54 Fed.

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