that right under the deed of trust construed as a mortgage. The deed of trust provides for a sale of the property by the trustee to accomplish the objects of the trust, and the method of procedure is provided in detail. The certificate at the end of the deed of trust declares that it correctly and accurately states the trust and confirms it in all particulars in accordance with the conditions and stipulations therein expressed. The certificate is signed by the appellant, and is therefore a part of his contract. The sale of the property by the trustee appears to have been made in accordance with the terms specified in the deed of trust. In Bell Mining Co. v. First Nat. Bank, 156 U. S. 470, 477, 15 Sup. Ct. 440, 443 [39 L. Ed. 49], the Supreme Court of the United States had before it this question under the laws of Montana. In that case the court said: "There is nothing in the law of mortgages, nor in the law that covers what are sometimes designated as trust deeds in the nature of mortgages, which prevents the conferring by the grantor or mortgagor in such instrument of the power to sell the premises described therein upon default in payment of the debt secured by it, and, if the sale is conducted in accordance with the terms of the power, the title to the premises granted by way of security passes to the purchaser upon its consummation by a conveyance. Grant v. Burr, 54 Cal. 298; Bateman v. Burr, 57 Cal. 480. "The power of sale in the indenture, whether we call it a deed of trust or a mortgage, does not change its character as an instrument for the security of the indebtedness designated, but it is an additional authority to the grantee or mortgagee, and, if he does not choose to foreclose the mortgage by any of the ordinary methods provided by law, he can proceed, under the power added for the sale of the property, to obtain payment of the indebtedness. The insertion of a power of sale does not affect the mortgagor's right to redeem so long as the power remains unexecuted, and the mortgage is not, as it may be, foreclosed in the ordinary manner; but, when a sale is made of the interest of the mortgagor, his right is wholly divested, embracing his equity of redemption." [5] 5. With respect to the further contention that the power of sale contained in the declaration of trust was revoked by the notices of rescission served by appellant upon the trustee and vendors on February 26 and 27, 1915, it may be said that thereafter appellant, being unable to make the payment of principal and interest falling due on March 1, 1915, in accordance with the terms and conditions of the declaration of trust, entered into an agreement for additional time within which to pay the various installments of principal and interest remaining unpaid. It was expressly understood and agreed in this renewal contract "that each and every of the conditions or agreements mentioned in said declaration of trust shall remain in full force and effect except as the same is expressly changed or modified by this agreement," and the instrument was signed by appellant. Even were we to concede that the power of sale was revoked by the notices of rescission, the effect of the latter agreement would be to revive such power in the trustee; and, as no further attempts to effect a revocation have apparently been made, this power was valid and subsisting at the time of the trustee's sale. This brings the case within the rule established by the authorities heretofore cited. The decree of the District Court is affirmed. CINCINNATI, N. O. & T. P. RY. CO. v. HALL. (Circuit Court of Appeals, Sixth Circuit. June 15, 1917.) No. 2888. The court is presumed to have correctly charged the jury, in the ab- sence of exception. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3750.j 2. NEGLIGENCE 101-MASTER AND SERVANT 179, 228(1)-INJURIES TO Contributory negligence and the acts of fellow servants are not good defenses to an action under the federal Employers' Liability Act (Act [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; 3. COMMERCE ~27(8)—INTERSTATE COMMERCE-PERSONS ENGAGED. An employé engaged in repairing a bridge used by an interstate carrier on its main line is engaged in interstate commerce. 4. MASTER AND SERVANT ~103(1)—INJURIES TO SERVANT-DUTY OF MASTER. A master owes his servants the nondelegable duty to exercise reasonable care to provide a safe place in which to work, which care may not be relaxed whenever the circumstances demand it. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 175.] 5. MASTER AND SERVANT 112(1)-INJURIES TO SERVANT-CARE. A railroad company owes its employés a continuing duty to maintain its roadbed in a reasonably safe condition for work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 212, 6. MASTER AND SERVANT ~205(1)-INJURIES TO SERVANT-ASSUMPTION OF An employé has the right to act upon the assumption that proper care has been exercised with respect to the place of work and to suitable ap- pliances, and does not assume any negligence of the master in those re- spects until he becomes aware of it, or is charged with notice of facts showing the master's failure to exercise such care. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 547.] 7. MASTER AND SERVANT 112(1)—INJURIES TO SERVANT-NEGLIGENCE OF A railroad company, whose employés were engaged in making a cut in a fill approaching a new bridge, which cut was to make a place for a wooden bent intended to hold up the track and bridge while the abutment was being removed and other permanent structure built in its place, is guilty of negligence in failing to shore up the fill for the protection of those employés engaged therein, where the fill was so constructed that trains passing over it might and did cause it to cave in and injure em- [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218.] The verdict of the jury on questions of fact, as to whether an employé was appropriately warned of the danger of his place of work, is conclu- [Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. §§ 3923, 3924.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 9. MASTER AND SERVANT 211-INJURIES TO SERVANT-ASSUMPTION OF RISK. An employé, engaged in digging a cut in a fill approaching a stream over which a new bridge was to be constructed, does not, on the theory that he was creating his own place of work, assume the risk of injury from the caving of the fill where such caving was due to the passage of a train and to the peculiar construction of the fill, of which it did not appear that the employé had knowledge; the case being different from that of the ordinary ditch case. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 557.] In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge. Action by W. E. Hall, administrator of the estate of Rufus Hood, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed. Preparatory to the substitution of a new bridge for an old one over Soddy creek, in Tennessee, on the main line of plaintiff in error, herein called defendant, the defendant caused a cut to be made in the fill approaching the bridge and immediately next to a stone abutment at the south end of the bridge, 24 feet long, 72 feet high, 32 feet wide; those figures measuring a transverse section of the fill at that point. The cut was to make a place for a wooden bent, which, with another on the north side of the abutment, was to hold up the track and bridge while the abutment was removed and other permanent structure built in its place. Hood, an employé, was, with others, engaged on the cut, which was supervised immediately by a foreman. There was also a foreman of the entire work on the bridge and both approaches, and all the work and men engaged upon it were under the supervision of the defendant's bridge builder, of long experience. When the men were set to work at the cut, a foreman marked off the places where they were to work, showed them how deep to go, and how much to take out. Beginning one afternoon, the men had cut in on either side about 6 feet and to the bottom. As the work proceeded, the face of the fill was shored up by direction of the supervisor; planks being placed uprightly against the face of the cut braced by crosspieces running from the face of the planks to the face of the abutment. Who did the work of shoring does not appear. The supervisor said it was done "To protect the stringers, we always should in doing that sort of work, that makes it solid down there, so it can be used without danger. * * * We shored it up on account of the soft and loose dirt. It was liable to cave in." To the end that traffic might not be interrupted, strong stringers were introduced under the ties to hold up the tracks; the ends on one side resting on the abutment and on the other on the roadbed itself, or upon a heavy crosssill, as the jury might determine from conflicting evidence. The supervisor testified, and it is clear, that stringers resting on the fill itself would make the work more dangerous to those working in the cut. The fill was composed of sand and some clay for about half its height from the bottom; above that some sand and clay, with many round and smooth boulders running in size from large pebbles to 14 inches in diameter. The top of the fill was ballasted with slag of perhaps a foot and a half in thickness, having a tendency to form into masses. The supervisor knew the character of the fill. Whether the ends of the stringers rested on a sill or on the top of the fill, the ties must have been lifted out of their positions in the slag, thus leaving transverse depressions and heavy ridges in the slag. One stringer was under the middle of the track, and the other two at the sides, though how far apart does not certainly appear. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In the early afternoon of the second day, the men had cut through from side to side and down from the top about 6 feet, leaving to be removed but about 1 to 2 feet at the bottom immediately under the track and about 4 feet long on each side and sloping down from the middle outwardly. How far the shoring had been completed does not certainly appear, but there was no shoring under the track at the deepest part of the cut and where it was needed the most. An employé working with Hood (an intelligent witness, so far as one can judge from the record) made the unshored distance 10 feet, The supervisor first said it was 4 feet, and, after making some calculations involving the width of the stringers and the distance between them, calculated the distance to be 62 feet. The jury were at liberty to find the distance 10 feet. When questioned on the assumption that the distance was 10 feet, the supervisor said: "It would be an unusual and dangerous method to do the work, if there should be as much as 10 or 12 feet left under the track unshored. It is not the usual method to leave so long a space as that unshored." Trains passed over from time to time, the last at one-half to three-quarters of an hour before the accident happened. Hood was at work under the track when the fill caved in. He was thrown against the abutment and fatally injured. Sand and loose earth covered his legs and the lower part of his body, while his chest and head were crushed in by masses of slag, one said to be as large as a flour barrel. In the débris was found a rotten log or tie about 3% feet long, which had been imbedded in the sand and boulders about 3 feet from the top of the fill and the same distance from the face of the cut. The material above the log fell. It may be that this piece of decayed wood, disturbed by the jarring of the trains, precipitated the fall of the sand and boulders in which it was, and thus caused the fall of the then overhanging slag. It may be the log had nothing to do with it; but the fall of all the débris was practically simultaneous. There was some testimony tending to show warning to the workmen to look out for cracks and for falling earth; but the burden of the warning was to get out from under when trains were passing, lest blocks, brake beams, etc., might fall. One witness testified the men were told they could see when the earth began to crumble. If the shoring had been carried under the track, there is no reason to think an accident would have happened. The break in the face of the fill did not go down to the bottom, but only about 3 feet from the top, and it was the opinion of the supervisor that the work Hood was immediately doing did not contribute to the fall. The supervisor left the work on a train about onehalf to three-quarters of an hour before the accident. He said the train had not apparently affected the top of the embankment, and he stood at the end to see whether the stringers were sufficient to hold up the roadbed. He made no inspection of the face of the cut, and was unwilling to say that the passing train had nothing to do with the fall. Neither of the foremen had been present for perhaps three-quarters of an hour before the accident. Hood was 27 years old, industrious, of good habits, and was a "good husband," earning $1.65 a day, which he applied to the support of his family. The action was brought by his administrator under the Employers' Liability Act for the benefit of his widow (23 years of age) and two children (one posthumous), who at the time the action was brought were, respectively, 4 years and 16 months old. The verdict was for plaintiff for $9,750, of which the court required a remittitur of $3,000. Among other things, the court charged the jury: "There is, generally speaking, a duty on a man who employs laborers to use reasonable care to make the place in which they are to work safe. He does not insure their safety. He is not responsible for accidents that happen to them unless he fails to take reasonable care for their protection. The care which he must take is such as a reasonably prudent employer would take under the circumstances, having due regard for the safety of his employés. It is the ordinary care of a reasonably prudent man; no more, and no less. The question is to be determined by the jury in the light of all the circumstances. "Now, ordinarily, where men are laborers, engaged in the work of excavation, considering the changes that take place in the place where they work, this duty of the master to furnish a safe place to work is held to have no application on the idea that the men themselves are making their place of work and that the conditions of the working place are constantly changing as a result of their own labor, and under such circumstances the master cannot be held, cannot be expected to exercise a constant supervision over the safety of the place where the place is changing from moment to moment as a consequence of their own labor. "In this particular case, however, there may be another element which enters into the question as to the safety of this working place. This was not an excavation in the nature of an ordinary ditch, but it was an excavation which was being made under a railroad track where trains were run over it from time to time, and the excavation on one side was in the embankment which was a part of the fill on which the line of the railroad rests, and the railroad was from time to time running its trains over this fill on this track, and the danger of the place, the danger incident to the digging which the men were doing, may have been materially increased by the fact that trains were run over this embankment, which tended to loosen the earth and make the place more dangerous than it would have been, if they were at work in an ordinary excavation in another place. And the plaintiff maintains that this doctrine of the nonliability of the master as to making the place safe does not apply, and that he must use reasonable care under this condition to see that the place in which his men were at work was made safe; that is, he must use ordinary care of a reasonably prudent man. "Now, I charge you that that is the law, and that if you find from the greater weight of this evidence that the condition of this place as to safety depended, not only on the work that the men were doing in digging there, but also depended materially upon the fact that trains were from time to time run over this fill, then there would be a duty on the master; and if the danger of the place was materially increased by the fact that trains were being run over the fill, then the master must use the care of an ordinarily prudent man in reference to making the place safe in view of all those conditions." The record shows: "To that portion of the charge last quoted above the defendant duly excepted. The remaining portions of the charge were wholly unexcepted to." "The parties agree that the foregoing part of the charge covers the controlling question in the case on the question of liability." The only assigned errors needing notice are those involving the claim that the verdict was excessive and those having to do with the charge of the court as given above. J. J. Lynch, of Chattanooga, Tenn., for plaintiff in error. W. B. Miller, of Chattanooga, Tenn., for defendant in error. Before WARRINGTON and KNAPPEN, Circuit Judges, and HOLLISTER, District Judge. HOLLISTER, District Judge (after stating the facts as above). [1,2] What the learned trial judge said to the jury on the subjects of contributory negligence, assumption of risk, consequences of acts of fellow servants, the alleged failure of defendant to make adequate inspection, and to give proper warning to Hood of the danger of the work, does not appear; but in the absence of exception the judge is presumed to have charged the jury correctly on those subjects. any event, contributory negligence and acts of fellow servants would In 1 Myers v. Coal Co., 233 U. S. 184, 195, 34 Sup. Ct. 559, 58 L. Ed. 906; Ducktown, etc., Co. v. Fortner, 228 Fed. 191, 142 C. C. A. 547 (C. C. A. 6); Railway Co. v. Mustell, 222 Fed. 879, 881, 138 C. C. A. 305 (C. C. A. 9). |