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cient protection for my hands. I thought I Davis' Adm'r, 138 Ky. 628, 128 S. W. 1062; might get my fingers burned if I took hold of Druse et al. v. Pacific Power & Light Co., 86 it with bare hands, and that the children Wash. 519, 150 P. 1182; Williams et al. v. might get burned if they got on it. I did not Metropolitan Edison Co., 267 Pa. 158, 110 A. want to get burned, and exercised care all the 92; Haertel et al. v. Pennsylvania Light & way through to use the napkin. When I Power Co., 219 Pa. 640, 69 A. 282, 9 R. C. Lo used both hands, I looked to see that I was p. 1202, § 14; 20 C. J. p. 375. placing both of them on the napkin. I relied [2] Counsel for plaintiff assert that the upon the napkin to protect me from the cur- above rule is limited by the principle that rent."

where a person seeks to rescue another from At the time of the accident, plaintiff was imminent danger, and in the effort imperils 42 years of age, and a man of considerable his own life, he is not as a matter of law guilexperience and travel. He had a public ty of contributory negligence, unless his act school education and had also taken a six is so rash and reckless that a person of ordimonths' business course in Spencer Univer- nary prudence would not undertake it. They sity. He had resided during different times contend that the facts in this case bring it at Birmingham, Mobile, Evansville, Kansas within the above principle and in support City, Missouri, Atlanta, Indianapolis, Grand thereof cite the following cases : Eckert v. Rapids, Terre Haute, Philadelphia, and Des L. I. R. Co., 43 N. Y. 502, 3 Am. Rep. 721; Moines.

Pennsylvania Co. v. Langendorf, 48 Ohio St. Plaintiff charged in his petition that the 316, 28 N. E. 172, 13 L. R. A. 190, 29 Am. defendant was negligent in the maintenance St. Rep. 553; Pittsburg, C., C. & St. L. Ry. of its electric wires, in failing to trim the Co. v. Lynch, 69 Ohio St. 123, 68 N. E. 703, trees so as to keep the branches from rub

63 L. R. A. 504, 100 Am. St. Rep. 658; Beckbing the wires and causing them to break, in

er v. Louisville & N. R. Co., 110 Ky. 474, 61 failing to keep the wires properly insulated, S. W. 997, 53 L. R. A. 267, 96 Am. St. Rep. and in failing to give warning of the danger 459; Corbin v. City of Philadelphia, 195 Pa. from the high voltage carried through the 461, 45 A. 1070, 49 L. R. A. 715, 78 Am. St. wires.

Rep. 825; West Chicago St. R. Co. v. LiderIn its answer defendant denied its neg

man, 187 Ill. 463, 58 N. E. 367, 52 L. R. A. ligence and set up a plea of contributory neg- 655, 79 Am. St. Rep. 226; Linnehan v. ligence.

Sampson, 126 Mass. 506, 30 Am. Rep. 692; At the close of plaintiff's evidence on mo

Dixon v. New York, N. H. & H. R. Co., 207 tion of the defendant, the court directed a

Mass. 126, 92 N. E. 1030; Saylor v. Parsons verdict in favor of the defendant upon the

et al., 122 Iowa, 679, 98 N. W. 500, 64 L. R. ground that the plaintiff was guilty of con

A. 542, 101 Am. St. Rep. 283; Railroad Co. tributory negligence as a matter of law.

v. Ridley, 114 Tenn. 727, 86 S. W. 606; Judgment was entered accordingly, and from that judgment this writ of error' was sued State, to the use of Dove et al., v. Mayor and

City Council of Baltimore, 141 Md. 344, 118 out.

A. 753; Louisville & N. R. Co. v. Orr, 121 [1] It is well settled as a general rule that, Ala. 489, 26 So. 35; Norris v. Atlantic C. L. where a person with knowledge of the dan- R. Co., 152 N. C. 505, 67 S. E. 1017, 27 L. R. gerous character of an electric wire purpose. A. (N. S.) 1069; Gibney v. State, 137 N. Y. ly comes in contact with it, he is guilty of 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. contributory negligence and cannot recover for the resulting injury. Morris v. Kansas Rep. 690; Chattanooga Light & Power Co. v. City Light & Power Co., 302 Mo. 475, 258 S. Hodges, 109 Tenn. 331, 70 S. W. 616, 60 L. W. 431; Croteau v. Twin State Gas & Elec

R. A. 459, 97 Am. St. Rep. 844; Bracey et tric Co., 79 N. H. 515, 112 A. 397; Billington al. v. Northwestern Improvement Co. et al., v. Eastern Wisconsin Ry. & Light Co., 137 41 Mont. 338, 109 P. 706, 137 Am. St. Rep. Wis. 416, 119 N. W. 127; Glander v. Mil- 738; Workman v. Lincoln T. & T. Co., 102 waukee Electric Ry. & Light Co., 155 Wis. Neb. 191, 166 N. W. 550; City of Tipton et 381, 144 N. W. 972; McNamee v. Western al. v. Racobs, 47 Ind. App. 681, 95 N. E. 265; Union Teleg. Co., 140 App. Div. 874, 125 N. Dillon v. Allegheny County Light Co., 179 Y. S. 622; Id., 160 App. Div. 785, 145 N. Y. Pa. 482, 36 A. 164. S. 981; Frauenthal v. Laclede Gas Light Co., Additional authorities on this proposition 67 Mo. App. 1; Shade et al. v. Bay Counties may be found in 19 A. L. R. 4. Power Co., 152 Cal. 10, 92 P. 62; City of In Eckert v. Railroad Co., supra, plainOwensboro v. Winfrey et al., 191 Ky. 106, tiff's intestate was standing near the track of 229 S. W. 135; Capital Gas & E. L. Co. v. the defendant company. A small child, three

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10 F.(2d) 111 or four years old, was sitting upon the track, sion usually present on such occasions, the in front of an approaching train. Plaintiff's uncertainty as to the proper move to be made, intestate, seeing the danger, ran to the child, the promptness required, and the liability to seized it, and threw it clear of the track on mistake as to what is best to be done, sugthe side opposite to that from which he came, gests that much latitude of judgment should but, continuing across the track himself, was be allowed to those who are thus forced by struck by the locomotive, thrown down, and the strongest dictates of humanity to decide received injuries from which he died. The and act in sudden emergencies. And the doccourt said:

trine that one who, under those or similar "Under the circumstances in which the circumstances, springs to the rescue of andeceased was placed, it was not wrongful in other, thereby encountering even great danhim to make every effort in his power to res- ger to himself, is guilty of negligence per se, cue the child, compatible with a reasonable is neither supported by principle nor authorregard for his own safety. It was his duty ity.” to exercise his judgment as to whether he In Railway Co. v. Lynch, supra, the could probably save the child without serious plaintiff, a watchman at a railway crossing, injury to himself. If, from the appearances, sought to rescue a woman on the track from he believed that he could, it was not negli- an approaching caboose. In Becker v. Railgence to make an attempt so to do, although road Co., supra, the plaintiff, a boy 12 or 14 believing that possibly he might fail and re- years

of age, was attempting to rescue a girl ceive an injury himself. He had no time for companion, who had fallen' between the ties deliberation. He must act instantly, if at all, of a railroad bridge, from the danger of an as a moment's delay would have been fatal approaching train. In Corbin v. Philadelto the child. The law has so high a regard phia, supra, the plaintiff's intestate was killfor human life that it will not impute negli- ed while attempting to rescue a boy who had gence to an effort to preserve it, unless made been overcome by gas in a trench. In Railunder such circumstances as to constitute 'road Co. v. Liderman, supra, a mother sought rashness in the judgment of prudent per- to rescue her three year old child from an apsons.” (Italics ours.)

proaching street car. In Linnehan v. SampIn the Eckert Case, as stated by the court, son, supra, the plaintiff sought to rescue a plaintiff's intestate had no time for delibera- man who was being gored by a bull. In Dixtion. He was called upon to act instantly. on v. Railroad Co., supra, the plaintiff sought A moment's delay would have been fatal to to rescue one who was in a position of peril the child. No such condition existed in the from an approaching train. In Saylor v. case at bar. Not only did plaintiff have time Parsons, supra, the plaintiff sought to rescue for reflection, but he did reflect. He folded a man from a falling wall by seizing a 2x4 a napkin about the wire. He tested the wire about 7.feet long and rushing over and placwith his fingers. He then seized it and com- ing it against the wall to prevent it from fallmenced to carry it across the street. The ing. In Railroad Co. v. Ridley, supra, plainchildren, whom he sought to shield accord- tiff's intestate sought to rescue a boy, about 8 ing to his own testimony, were 25 or 30 feet years of age, from an approaching train. from the place where he picked up the wire. In State v. Baltimore, supra, the facts They were not approaching the wire. They were these: were in no immediate danger of coming in "On a Sunday afternoon Edwin H. Dové, contact with it. His act was to guard against while taking a walk with a friend, noticed future possible danger to the children, and that an electric wire of appellee (defendant not danger that was imminent, calling for im- below] had fallen from a pole line on Pratt mediate action, and giving no time for re- street, near Schroeder street. The wire had flection or consideration.

fallen in the form of a loop, and extended for The distinction between the instant case some distance in and over the gutter, with and the Eckert Case exists in practically all the ends caught and entangled with the othof the cases cited and relied upon by coun- er overhanging wires, or in the branches of sel for plaintiff. În Pennsylvania Co. v. trees. The insulation was off of part of the Langendorf, supra, the plaintiff was struck wire, and at one point, where it rested in the by a locomotive while attempting to rescue gutter, it was sparkling and sputtering. A a little child from being struck down by an number of children were playing on the sideapproaching train. In that case the court walk in close proximity to the wire and were said:

poking at it with sticks. At the time Dove “The attendant circumstances must be re- undertook to push or throw the wire into the garded; the alarm, the excitement and confu- street the sparkling seems to have ceased.

10 F.(2d)-8

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Dove said, according to one of the witnesses, From the foregoing it will be seen that "Them children might be in the way; you see the courts recognize the human instinct which it is not loaded, but if that wire comes down, prompts a person to go to the rescue of antangles up, and falls on them, it might hurt other in a position of imminent danger, likethem. The point where the wire had been ly to result in death or serious injury. They sparkling was ‘about 10 feet or about 12 feet hold that, where one undertakes such a resfrom where Dove shoved the wire off. 'There cue under circumstances which do not admit were children right around the point where of delay or time for reflection and considerathe wire was spluttering.' Dove waved them tion, he is not guilty of contributory negliback, and undertook to push the wire away gence, unless his act is so rash and reckless from them into the street, and was instantly that a man of ordinary prudence, in the light electrocuted."

of the attending circumstances would not The court said:

undertake the same. “Whatever may be thought about the dan- In addition to the above cases, counsel for ger involved in this act, it cannot be said that plaintiff cite two cases where the injury one could know in advance that it would threatened was to property: Temple Elecresult in the death of the man attempting it. tric Light Co. v. Halliburton (Tex. Civ. Certainly he did not anticipate that result, as App.) 136 S. W. 585, and Leavenworth Coal there is nothing to indicate that he contem- Co. v. Ratchford, 5 Kan. App. 150, 48 P.927. plated suicide. It did not follow, necessarily, In the former case, a telephone wire had bethat, because the insulation was defective at come crossed with an electric light wire, and the point where the sparkling had been ob- at the point where the telephone wire enterserved, the wire was unprotected at the point ed the home of plaintiff's intestate it was where Dove stood, 10 or 12 feet away. It sparking. Plaintiff's intestate undertook to was about 5 o'clock in the evening and grow- cut the wire to prevent the house from catching dark. So that, while some of the wit- ing on fire. In the latter case, plaintiff was nesses noticed bad insulation in places, one attempting to remove a sparking electric might easily have failed to observe it. Of

light wire from his barn with a baseball bat, course, under ordinary circumstances, and

to prevent it from setting the barn on fire. with time for consideration, prudence would In these two cases, the same principle was have dictated a careful examination of the applied, except that the imminent danger was wire before attempting to handle it with nak- to property rather than to persons. ed hands. But the conditions existing there

In Tipton v. Racobs, supra, a wire carappeared to Dove to require immediate ac- rying a high voltage broke, and one end there tion. He evidently was moved to do as he of fell into a shade tree along the sidewalk did by what he regarded as the necessity of and hung suspended from a limb of a tree. the occasion, if the children were to be pro- The wind caused the limb to sway, swinging tected against a grave and impending danger the wire backwards and forwards over the to their lives. We think the question of con

street and sidewalk, at times touching the tributory negligence should have been submitted to the jury.”

ground at a point along the street near the In Railroad Co. v. Orr, supra,

home of plaintiff's intestate. Plaintiff's in

plaintiff's intestate sought to rescue a child from an ap- testate, returning to his home, found the wire proaching train. In Norris v. Railroad Co., in this condition and his children in close supra, plaintiff sought to rescue a person proximity to the wire. For the purpose of from an approaching train. In Gibney v. removing the wire, and placing it beyond the

reach of his children and others passing State, supra, a father was attempting to rescue his child from drowning. In Chatta- along the street, he took hold of the wire nouga Co. v. Hodges, supra, an employer had where it was apparently insulated, and reso negligently constructed a building as to

ceived injuries causing his death. A motion allow it to take fire. An employce in the

was made to set aside the general verdict, building ran out to give the alarm, failing in upon the ground that it was irreconcilable which, and for the purpose of using a tele- with answers made by the jury to special inphone, he ran back into the building and re- terrogatories. Under the practice of Indiceived severe burns, from which he died. In ana, for the purpose of determining the quesBracey v. Improvement Co., supra, plaintiff's tion presented to the court, all of the facts intestate met his death while attempting to alleged in the complaint were assumed to rescue miners who had been overcome by have been proven under the general verdict. gases while engaged in extinguishing fires in The complaint, among other things alleged Bburning mine.

that plaintiff "took hold of said wire at the 10 F.(20) 111 point where it was apparently insulated, and umbrella of one passing to the wire would where there was a substance resembling in- doubtless have caused the instant death of sulation; that the insulation of said wire, at him who carried it. Will the law say to the said point where deceased took hold of the policeman on duty under such circumstances same, was in fact imperfect, and was not of that his sole or primary duty is to look out proper thickness, material, or texture to re- for his own safety? If it will not, then this sist the electricity in said wire and prevent question was one for the jury. It was told the same from passing into the hand and that if he voluntarily took the wire in his body of said deceased.

hand there could be no recovery. The testiThe court in passing on the question said: mony showed that he undertook to remove it

"Assuming the averments of the com- with his mace-a method which, under ordiplaint to have been proved, he knew, or at nary circumstances, would have been perfectleast believed, that, so far as touch was con- ly safe. In some unexplained way he came cerned, the purpose of insulation was to into more dangerous contact with the wire." make the wire safe, and that the insulated It held the policeman was not guilty of wire was a dead wire. H saw this broken, contributory negligence. hanging wire suspended over the street and Workman v. Lincoln T. & T. Co., supra, sidewalk, and saw the two uninsulated bare was an action to recover damages for neglispots at and near the end toward the ground, gence resulting in the death of George B. and realized the danger to which children and Workman. A wire broke and came into conothers would be exposed by the touch of this tact with an electric light wire carrying 4,loose, swinging wire at said exposed unin- 400 volts. One end of the broken wire came sulated portion, and believing that he could within several feet of the ground in the street safely take hold of said wire at its insulated below. After that condition had existed portions and remove it to a place of safety, from 9 o'clock in the morning until 11 o'clock and thereby prevent the risk of injury to his at night, Workman came to the place of the own children and other persons ignorant of accident. The broken wire was emitting the dangers of an exposed live wire, he took sparks and was being guarded by a barber. hold of the wire, at a point that to him ap- The barber warned Workman not to touch it. peared to be insulated and safe, to remove Workman had been in the employ of the it, with the result alleged in the complaint. Lincoln Traction Company as a repairer of Taking the averments of this complaint as electric street cars and was experienced in proved, the deceased was led to his death by the handling of wires carrying a high voltthe deeeptive insulated appearance of the age. He attempted to handle the wire by wire."

means of a pair of pliers wrapped with a In the instant case, plaintiff did not rely rubber taping for the purpose of insulating upon the insulation, but he relied upon a de- them. He seized the wire with the pliers, vice of his own making, the linen napkin. walked backwards, and pulled it after him In Dillon v. Light Co., supra, a police- several feet, when the wire touched a lantern

v, man on duty on a rainy night attempted to he was carrying, knocked him down, and remove with his mace from a street on his electrocuted him. The court held he was not beat a broken wire hanging from a pole, guilty of contributory negligence as a matter knowing it to be charged with electricity. In of law. In this case there was a strong dispassing on the question of contributory neg- senting opinion. This case fairly supports ligence the court said:

the contention of plaintiff. In our judgment, "The only question which we are called however, it is unsound and out of line with upon to consider is that of the alleged con- the great weight of authority. tributory negligence of the man who was In the instant case, the plaintiff knew the killed. He knew that the wire was conduct- wire was an electric light wire. He was ating a dangerous current of electricity. If tracted to the scene by the electric lights gohe had no duty imposed upon him with re- ing out in his house. He saw it emitting a spect to it, he had sufficient notice to make glow at the pole to which the other end was it negligence for him to interfere with it. He attached. He believed it to be dangerous to was, however, a policeman on duty at the touch, because he gave as his reason for attime and upon the street on which the wire tempting to remove it his fear that the chilfell. It hung from a pole, the end resting on dren might come in contact with it and be the ground near the foot crossing, and at in- injured. He appreciated it was dangerous, tervals emitting sparks. It was a rainy because he undertook to test it with his finnight, and any contact with the wire meant gers before taking it into his hands. He deinjury. Even the touch of the frame of an vised his own method of protection, to wit, the linen napkin folded about the insulation. 5. Execution Pawl! R-Lien on personal prop. There was no impending danger to any other

erty of debtor exists from date of delivery of

execution to sheriff under Colorado law. person. The circumstances required no hasty or ill-considered action. He had time for property of debtor exists from date of delivery

Under C. L. Colo. 5913, a lien on personal deliberation and reflection. He voluntarily of an execution to sheriff, execution being reseized a dangerous electric wire in his hands turnable within 90 days. and undertook to carry it out of the street. 6. Exeoution 110-Execution lien against Such being the undisputed facts, we cannot property not avoided by mortgagee's possessay that the learned District Judge erred in sion, nor sheriff's failure to make effectual holding that plaintiff was guilty of contribu

levy. tory negligence as a matter of law, preclud

Execution lien against property held not

avoided by mortgagee's possession of property ing his recovery.

under its prior mortgage, nor by failure of The judgment is therefore affirmed. sheriff to make an effectual levy as against

mortgagee's possession; right of execution
creditor existing as to whatever remained after
satisfaction of prior claims of mortgagee.
7. Bankruptcy Om 303(1)-Trustee had burden

of proving insolvency of bankrupt, when judgFIRST STATE BANK OF CROOK, COLO.,

ment lien was obtained to avoid it. et al. v. FOX.

To avoid lien of judgment creditor, because

arising within four months immediately pre(Circuit Court of Appeals, Eighth Circuit. ceding filing of petition in bankruptcy, trustee December 5, 1925.)

bad burden of proving that bankrupt was in

solvent when lien was obtained. No. 6934.

8. Bankruptcy Om 303(3)-Insolvency anterior 1. Bankruptcy Om 224Objection that 'referee to filing of bankruptcy petition not established was without jurisdiction of proceeding to re

by failure to realize from sales of bankclaim proceeds of property held by mortgagee

rupt's property, after adjudication, an amount came too late.

sufficient to pay his debts. Objection that referee in bankruptcy was

That sales of property of bankrupt, made without jurisdiction of proceeding in name of by trustee after adjudication, did not realize an bankrupt to reclaim proceeds of property held amount sufficient to pay bankrupt's debts, held

not to establish fact of insolvency at a time anby mortgagee, in that trustee was proper party to commence proceeding, came too late, where

terior to filing of bankrupt's petition. issue had been joined in proceeding as insti. 9. Bankruptcy C199—Lien of judgment credituted, and defendants had asked specific re- tor not avoided, where it did not appear that lief against trustee.

bankrupt was insolvent when lien was cre

ated. 2. Bankruptcy Omw288(1) --Mortgagee waived

Lien of judgment creditor held not avoided, right to have its title to property claimed by because arising within four months immediatetrustee of bankrupt adjudicated in plenary ly preceding filing of petition in bankruptcy, action,

where it did not appear that bankrupt was In proceeding by trustee of bankrupt to insolvent when lien was created. reclaim property in possession of mortgagee, mortgagee waived right to have its title to Appeal from the District Court of the property adjudicated in a plenary action, rath- United States for the District of Colorado; er than in a summary proceeding, where it John Foster Symes, Judge. joined issue and participated in hearing before referee without timely raising question.

Reclamation proceeding by Gladys F. 3. Courts m 366(1)-Construction of state

Fox, trustee, against the First State Bank of statute by state Supreme Court is controlling Crook, Colo., and another. From an order in federal court.

confirming an order of a referee in bankConstruction of a state statute by state ruptcy, requiring named defendant to acSupreme Court is controlling in federal court. count to trustee for certain property or pro

ceeds thereof, defendants appeal. Re4. Bankruptcy ma 184(3)-Lien of mortgageo

under valid mortgage executed more than manded, with instructions. four months prior to filing of petition in banķ- Coen & Sauter, of Sterling, Colo., and ruptcy by mortgagor held not avoided by Clarence L. Ireland, of Denver, Colo., for bankruptcy.

appellants. Lien of mortgagee, under C. L. Colo. $ 5085, acquired by taking possession of mortgaged

W. L. Hays, of Sterling, Colo., for approperty under valid mortgage within four pellee. months immediately prior to filing of petition in

Before STONE and VAN VALKENbankruptcy by mortgagor, which mortgage was given prior to such period, held not avoided by BURGH, Circuit Judges, and WILLIAMS, bankruptcy; section 5093 being inapplicable. District Judge.

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