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road, not to stop, as well as to look and listen, before attempting to go upon the track. On the other hand, it was held that, when a question arises as to whether the party attempting to cross had failed to stop, then an issue is raised as to a mixed question of law and fact, and therefore should be submitted to the jury. In that case it was also concedod that in cases of peculiar circumstances, where the facts were such that no two men could differ, it wouid then become the duty of the court, as a matter of law, to determine upon all the facts as to whether the negligence of the plaintiff was the proximate cause of his injury. There the court sought to distinguish between Beyel v. Newport News & M. V. R. Co., 34 W. Va. 538, 12 S. E. 532, on the ground that in the latter case it was shown that the plaintiff neither stopped, looked, nor listened where he could have heard a signal from an approaching train, and that being behind a wall running almost down to the railroad, which obscured his vision, and to a considerable extent his hearing, until he had reached a point within a very short distance of the track, and at a time when he knew that a train was about due. When we apply the rule announced in the City of Elkins Case to the facts as established in this case, we find nothing therein in conflict with what we conceive to be the universal rule where one, in utter disregard of surrounding dangers, neither listens nor looks before placing himself in a position of imminent peril.

It is well settled that, where a rule has been established by the federal courts anterior to a decision by the state courts, or where, on the other hand, the cause of action accrued after a change of decision in the state courts, the federal courts will abide their own decisions, or follow the decision of the state court at the time the cause of action accrued. It appears from the evidence that the plaintiff's cause of action accrued on the 25th day of July, 1915, and the Supreme Court of West Virginia rendered its decision in the case of City of Elkins v. Western Maryland Railroad Company, supra, on the 12th day of October, 1915. It is urged by counsel for plaintiff that Neininger v. Cowan, supra, was decided in view of the rule announced in Beyel v. Newport News & M. V. R. Co., supra, and Berkeley v. Chesapeake & O. R. Co., 43 W. Va. 11, 26 S. E. 349, and that the local law of that state is now expressed in the City of Elkins Case, which practically overrules the two last-named cases, and should, therefore, be adopted by this court.

18,9] We cannot concur in this suggestion for two reasons: (a) If the decision in the City of Eikins Case overrules the decisions of that court, this court would not be bound by such decision as to a cause of action which accrued prior to the date of its rendition; and (b) if the cases which counsel contend have been overruled did not establish the law of that state, then this court would not be required to alter its judgment in the case of Neininger v. Cowan, supra, simply because the state court had changed its view of the law. In other words, this court, in the absence of a well-established rule by the state court of West Virginia, was warranted in forming its independent judgment on the subject, and, in any event, it is not disposed to change its judgment, so as to meet the views of the later decisions in a cause of action like the one at bar, where rights and liabilities have arisen before the last-nam

ed decision by the Supreme Court of the state. Stanley Co. Commissioners v. Coler, 190 U. S. 437, 23 Sup. Ct. 811, 47 L. Ed. 1126; Kuhn v. Fairmont Coal Company, 215 U. S. 349, 30 Sup. Ct. 140, 54 L. Ed. 228. In the latter case the Supreme Court said:

"We take it, then, that it is no longer to be questioned that the federal courts in determining cases before them are to be guided by the following niles: (1) When administering state laws, and determining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to, but co-ordinate and concurrent, with the jurisdiction of the state courts. (2) Where, before the rights of the parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the state. (3) But, where the law of the state has not been thus settled, it is not only the right but the duty of the federal court to exercise its own judgment, as it also always does when the case before it depends upon the doctrines of commercial law and general jurisprudence. (4) So, when contracts and transactions are entered into and rights have accrued under a particular state of the local decisions, or when there has been no decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been expressed by the state court after the rights of parties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federai court should always lean to an agreement with the state court, if the question is balanced with doubt."

Being of opinion that the other assignments of error are without merit, we do not deem it necessary to discuss the same.

(10] No hard and fast rule as to the duty of a traveler on the highway to stop, look, and listen before crossing a railroad can be laid down. Under some circumstances the railroad company may so act as to allay the sense of danger and relieve the traveler from the obligation to stop, look, and listen. A plain view of the track may make it no breach of duty for him not to stop or listen. He may be traveling on foot or so silently that he can listen as well going as stopping. The obstruction of the view may be such that he is obliged to depend upon his hearing without the aid of his sight. We, therefore, do not lay down the inflexible rule that a traveler must stop, look, and listen under all circumstances. All that we decide in this case is that the evidence excludes any other reasonable conclusion, and that the decedent did not exercise the care in going on the track that a reasonable man would take for his own protection, and therefore the plaintiff cannot recover.

The facts of this case, when considered from any viewpoint, are such as to impel us to the conclusion that the negligent conduct of plaintiff's intestate was the proximate cause of his injury. Such being the case, we are of opinion that the action of the lower court in directing a verdict in favor of defendant was eminently proper.

For the reasons stated, the judgment of the lower court is affirmed.

PARKER, Superintendent for Five Civilized Tribes, et al. 5. RILEY et al. (Circuit Court of Appeals, Eighth Circuit. May 14, 1917.)

No. 4520.

1. INDIANS 16(3)—LANDS-LEASES-APPROVAL BY SECRETARY OF INTERIOR.

Act May 27, 1908, c. 199, § 1, 35 Stat. 312, provides that homesteads of allottees enrolled as mixed-blood Indians having half or more than half Indian blood, and all allotted lands of enrolled full-bloods and mixed-bloods of three-fourths or more Indian blood shall not be subject to alienation prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions wholly or in part. Section 2 authorizes leases of restricted lands for oil, gas, or other mining purposes with the approral of the Secretary of the Interior. Section 9 provides that, if any member of the Five Civilized Tribes shall die leaving issue born since March 4. 1906, the homestead of the allottee shall remain inalienable for the use and support of such issue during their lives until April 26, 1931, unless restrictions against alienation are removed by the Secretary of Interior in the manner provided in section 1. Held that, where an allottee died leaving a child born since March 4, 1906, and other heirs, the subsequent approval by the Secretary of the Interior of an oil and gas lease by the heirs removed the restrictions on alienation from the leasehold and the royalties thereunder, without a removal of the restrictions or alienation being first procured under section 1.

(Ed. Note. For other cases, see Indians, Cent. Dig. $ 45.]

2. INDIANS 16(3)—LANDS-LEASES-APPROVAL BY SECRETARY OF INTERIOR.

Such lease was an alienation of the oil and gas taken from the land by the lessor, and the approval thereof by the Secretary of the Interior was a removal of restrictions on such alienation.

[Ed. Note.--For other cases, see Indians, Cent. Dig. § 45.] 8. INDIANS 18_LANDS-DESCENT—RIGHTS OF PARTIES.

Assuming that the child born after March 4, 1906, las an estate for life in the allotment, and that this estate was not terminated or changed by the lease, the royalties nevertheless belonged to the heirs in equal shares, to whom the land descended under the Laws of Oklahoma, since as owner of an estate for life she had no right to open any mines, and no right by virtue of her life estate to the royalties or rents and profits from mines subsequently opened.

[Ed. Note.-For other cases, see Indians, Cent. Dig. 8 49.]

4. INDIANS Cw18_LANDS-DESCENT—RIGITS OF PARTIES.

The child born subsequently to March 4, 1906, did not have an estate for life in the allotment, but at most only an estate for years, defeasible during its term by her death, or by the removal of the restrictions on alienation by the Secretary of the Interior.

[Ed. Note.-For other cases, see Indians, Cent. Dig. § 49.] 5. CONSTITUTIONAL LAW C93(1)-INDIANS Om 15(1)—LANDS-RESTRICTIONS

ON ALIENATION-VESTED RIGHTS.

Section 7 of the Original Creek Agreement (Act March 1, 1901, c. 676, 31 Stat. 861) and section 16 of the Supplemental Creek Agreement (Act June 30, 1902, c. 1323, 32 Stat. 500) provided that the homestead of Indian allottees should be inalienable for 21 years, and remain after the death of the allottee for the use and support of children born after the date of the ratification of the original agreement. Held, that Act May 27, 1908, so far as its provisions are repugnant to and inconsistent with the original

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

and Supplemental Agreements, repeals them, and is a substitute therefor, and such repeal did not deprive the children of an Indian allottee of any vested estate or constitutional rights.

Reed, District Judge, dissenting in part.

• Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Suit by Tootie Riley, a minor, by U. C. Stockton, her guardian, and others, against Gabe E. Parker, as Superintendent for the Five Civilized Tribes, successor of Dana H. Kelsey, as Cnited States Indian Superintendent, Union Agency, and another. From the decree (218 Fed. 391), defendants appeal. Affirmed.

Paul Pinson, Sp. Asst. U. S. Atty., of Muskogee, Okl. (D. H. Linebaugh, U. S. Atty., of Muskogee, Okl., and Carter Smith, Sp. Asst. U. S. Atty., of Tulsa, Okl., on the brief), for appellants.

W. J. Horton, of South VcAlester, Okl. (R. A. Smith, of McAlester, Okl., on the brief), for appellee Riley.

C. H. Tully, of Eufaula, Okl., for other appellees.

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

SANBORN, Circuit Judge. On October 3, 1912, Tootie Riley, a minor, by her guardian, Julia Willingham, a minor, by her guardian, and Doc Willingham, the sole heirs at law of Emma Derrisaw Willingham, who before her marriage to Doc Willingham was Emma Derrisaw, a full-blood Creek Indian, made an oil and gas mining lease of 40 acres of land in Creek county, Okl., which had been allotted to Emma Derrisaw as her homestead, and provided in the lease that the royalties payable by the lessee should be paid, and they have been paid, to the United States Indian superintendent, Union agency, and to his successor, Gabe E. Parker, superintendent of the Five Civilized Tribes, who, together with W. M. Baker, cashier and special disbursing agent for the Five Civilized Tribes, now hold the same in trust for the benefit of the lessors. More than $15,000 are thus held and are ready for distribution, and the question in this case is when and in what way it should be divided among the lessors. The court below held that each of them was entitled to receive one-third thereof, and so decreed. From this decree the officers appeal, and their counsel present numerous objections and theories inconsistent with the adjudication below.

In the first place they contend that the approval of the lease by the Secretary of the Interior did not effect the removal of the restrictions on alienation of the part of the property which the lease granted to the lessee the right to take from it, and hence that the fund must be retained until 1931: (a) Because a renoval of restrictions is expressly a distinct act from the approval of a lease; and (b) because an oil and gas mining lease is not an alienation of land. The first arugment in support of this contention is founded on the fact that in the disposition of the lands of the Indians Congress imposed more extensive restrictions upon their homesteads than upon their other allotted lands, and upon sections 1, 2, and 9 of the act of May 27, 1908 (35 Stat. 312, 315,

c. 199). These are the provisions of these sections material to this controversy :

Section 1: "All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixedbloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this Act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act."

Section 2: "Leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than tive years, may be made with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise." .

Section 9: "That if any member of the Five Civilized Tribes of one-hall or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such * * * allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section 1 hereof, for the use and support of such issue, during their life or lives, until April 26, 1931, * * * in the event the issue hereinbefore provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free frony all restrictions." • Emma Derrisaw's homestead allotment was duly selected, allotted, and patented to her. In the year 1901 her daughter, Tootie Riley, was born. In July 1905, Emma Derrisaw and Doc Willingham intermarried, and as the result of this marriage Julia Willingham was born on February 11, 1907. In November, 1907, Emma Derrisaw Willingham died intestate. As Julia Willingham is her only issue born since Varch +, 1906, the right to use and occupation of the homestead until April 26, 1931, is vested in her by the terms of section 9, subject to the termination of that right by her death before that time, or by the removal of restrictions on alienation from the land, either in whole or in part. Subject to this homestead right of Julia, the title to the land, according to the laws of descent and distribution of Oklahoma, vested in Tootie Riley, Julia Willingham, and Doc Willingham in fee in equal shares upon the decease of Emma Derrisaw Willingham. The fact that the lease was lawfully and regularly made and that it was duly approved by the Secretary is conceded.

11 But counsel call attention to the declaration of section 9 to the etiect that the homestead in cases of this class shall remain inalienable "unless restrictions against alienation thereof are removed therefrom by the Secretary of the Interior in the manner prescribed by section 1 hereof," and insist that the approval of the lease was inetiective to remove the restrictions on alienation from the leasehold or from the royalties collected from it, because the Secretary in the aprroval of the lease acted under section 2, and not under section 1 of the act of May 27, 1908. They also urge that under section 5 of the act (35 Stat. 313), which declares that any attempted alienation or incum

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