The automatic and visible signal was

2,000 more in its immediate vicinity. The highway commissioner estimated that the average number of automobiles which passed over this particular crossing each day numbered at least 400. The defendant's division superintendent, in charge of that part of the road where the accident happened, testified on cross-examination as to the number of trains a day that passed over this crossing, as follows:

"Q. So that the traffic that goes both to New York and Philadelphia from Buffalo, and to Buffalo, passes through this place? A. Over the Lehigh Valley; yes, sir.

"Q. Yes, about how many trains a day? A. About 7 passenger trains each way a day, 6 or 7-yes, I guess there was 6 at that time. "Q. Some of those were local and some of those were express trains? A. Yes, sir.

"Q. And about how many trains a day at this time was your freight movement? A. Oh, I would say, each way, dozen trains a day.

"Q. So that there were about 36 trains a day for your total movement over that crossing? A. Yes; that is, on the three tracks. "Q. Yes, sir. A. Yes, sir."

The highway which crosses the tracks is one of the main roads of the county. The testimony tended to show there was some obstruction of the track, due to the construction of a snow fence, which began about 70 feet away from the crossing and was some 6 feet high. At the time this accident occurred no flagman and no gates were used at the crossing. But the testimony tended to show, and it was admitted over objection, that for possibly 15 years prior to the installation of the disc sign system the defendant company had kept a flagman stationed at this crossing. In 1913, however, the Public Service Commission of the state entered an order permitting the defendant to lay a third track at this crossing, which permission was granted on defendant's petition asking therefor. The order granting permission was upon the following express conditions:

(1) That within 30 days after the date of the order the defendant would file a petition for the elimination of the grade crossing.

(2) That the defendant would install at the crossing until it was eliminated "an automatic and visible signal, operated by approaching trains in such manner that it will give notice to the public of arriving trains at all times."

it does not appear that it was done under any authorization from the commission. Counsel for defendant insisted that, as it had complied with the commission's order to install this automatic signal system, no question could be raised because of the failure to have a flagman at the crossing. The matter was fully argued before the trial judge. He declined to be bound by the theory of defendant's counsel that it was for the Public Service Commission alone and conclusively to determine what protection was to be given by a railroad at its crossings. In so deciding I must say I think he was right. His charge on this point is found in the margin.1 And it has been held that the voluntary

1 "It is charged that it was negligent in not properly and adequately protecting this crossing by the use of a gate or flagman. And I think it becomes important for you to consider whether at this crossing, Lake street, such protection was required in order to give the protection to the plaintiff that the law required. Defendant's contention on this point is that no gate or flagman was required, since they had maintained at the crossing and near to the tracks an automatic and visible signal, electrically operated by approaching trains, which gave notice of the approach of the trains to the crossing, and that such signals were maintained pursuant to the order of the Public Service Commission of this state. I think that this evidence was properly received and is an item for your consideration and bears upon the question of whether the plaintiff was given complete protection. There is testimony in opposition tending to show that about 400 automobiles or vehicles of one kind or And there is testimony by the highway comanother passed over that highway in 24 hours. missioner, I think, or a witness who formerly was highway commissioner, to the effect that such is the fact; and also testimony was given by one of the witnesses, a railroad em

ployee, I think, that about 30 trains passed over this crossing in 24 hours. And these are circumstances and elements which you should take into consideration in considering the question as to whether, in the exercise of proper degree of care, additional protection should have been added there at the crossing in the way of a gate or a flagman.

"Upon that subject I instruct you that there are times when a defendant railroad company is required to keep a flagman or maintain a gate at a crossing, even at a country crossing; that it depends whether the view of the track was obstructed, whether flagmen or gatemen should be maintained or not, or whether there was a hindrance to perceive the approach of trains, or whether, in fact, the crossing was more than ordinarily hazardous, or when it is, shown that the crossing is a much-traveled one, or if used for switching operations, which renders it difficult-and I might state in passing there is no evidence here tending to show that this particular crossing, or the tracks at

It

establishment of gates at a crossing is evidence of their necessity. State v. Boston, etc., R. Co., 80 Me. 430, 15 A. 36. In the instant case the evidence showed that for possibly 15 years the defendant had kept a flagman at the crossing, this being prior to the installation of the disc signs in use at the time of the accident, and which had been installed by permission of the Public Service Commission of the State of New York. is evident that this was not an unimportant country crossing; and while undoubtedly there are crossings in country districts so little used that it would be improper for the court to instruct the jury that it should consider whether the failure of the railroad to maintain a flagman or a gate at that particular crossing was or was not negligence, this crossing was not of that class.

I fully agree with the statement in Evans v. Erie R. Co., 213 F. 129, 129 C. C. A. 375, in which Judge Knappen, speaking for the Circuit Court in the Sixth Circuit, said: "The Ohio statute does not provide that compliance with crossing signals by way of bell and whistle shall excuse a railroad from taking other precautions, even to the extent of providing gates or a watchman, provided the situation be such that common prudence and due regard for the safety of travelers at the particular place and time require such further precautions; and, as a general rule, whether such care and prudence require gates or flagmen at a given crossing, as being especially dangerous, is a question of fact for the jury, under all the circumstances of the case. A jury, however, would not be warranted in saying that a railroad company should maintain these extra precautions at ordinary country crossings."

The crossing where this accident occurred clearly was not of that class. It may not have been a crossing where, in view of the system installed, safety required that the de

the crossing, were used for switching purposes -or where there is uncommon amount of noise, and difficulty arises in hearing the approach of trains, or, in short, if conditions exist which make it difficult to hear the signals or whistles or the bell which are blown or given to herald the approach of a train.

"In addition to what I have said in respect to the trains advanced by the defendant, you will recall there is testimony tending to show that there was some obstruction of the track, a snow fence being maintained higher than the track, and about 70 feet therefrom. And you will also bear in mind the amount of travel over that highway, to which I referred a moment ago. The question is, therefore, submitted to you as one of fact as to whether at this crossing protection should have been given in the

fendant should have in addition either a flagman or a gate; but the plaintiff, in my opinion, was entitled to have the jury pass upon that question as one of fact, upon all the circumstances of the case. If a jury is incapable of deciding that question fairly and without prejudice, then there is something fundamentally wrong with our judicial system.

HAND, Circuit Judge (dissenting). I think that it was error to submit to the jury the issue of whether the defendant should have maintained a flagman or gate at this crossing. The plaintiff argues that, even if there be no such duty to wayfarers, there is one to passengers, since the standard of care is severer. Just the opposite is true, not, of course, because the duty to passengers is not in general more strict, but because the danger is far less probable. I do not, of course, know how often a train is derailed by a wagon, or a motor car, or indeed whether this case is not unique. But we have the right, I think, to draw on our experience to say that in the enormous majority of cases, where there is a collision, the train escapes. If derailment be a danger against which the highest foresight should provide, it ought to have been proved. . Prima facie we do not know it, and the jury had no right to assume it. The case was submitted as though the danger to passengers was on a footing with the danger to persons crossing, which appears to me a very serious confusion of a railroad's duty in such cases.

But I go further, and think that even towards wayfarers the defendant owed no duty to maintain a flagman at the crossing. Concededly the rule in New York is otherwise, and to hold the defendant we must proceed under federal decisions. I agree that we should do so, because this is a piece of the customary law of New York, and not of its

way of gates or a flagman, whether in the exercise of proper care and precaution there should have been a flagman or gates at the crossing to prevent collision at the crossing.

"I also instruct you, gentlemen, that inasmuch as the accident occurred on a country road, a flagman or gates were not required at the crossing, if you conclude from the evidence that but few persons and vehicles comparatively passed each day, or if you conclude that the locality and circumstances were such that the automatic bell signals, together with the signals given by the engineer, the whistle signals, were sufficient to give warning of the approach of the train to the crossing in question. Thus you will perceive, gentlemen, there are questions of fact submitted for your decision, upon which the rights of the parties depend."

v. NOBLE.

(Circuit Court of Appeals, Second Circuit. December 7, 1925.)

But I say that under the federal cases this was not such a crossing that a jury might require for it a flagman or a gate. The first decision is Grand Trunk R. Co. v. Ives, 144 U. S. 409, 12 S. Ct. 679, 36 L. Ed. 485, which has been reaffirmed in Panama R. Co. v. Pigott, 254 U. S. 552, 41 S. Ct. 199, 65 L. Ed. 400, and followed in Evans v. Erie R. Co., 213 F. 129, 129 C. C. A. 375 (C. C. A. 6), and Murphy v. Penn. R. Co., 1 F. (2d) 929 (C. C. A. 6). The doctrine is not that a jury may pass upon the issue in every case, but only when the crossing is more than "ordinarily hazardous." The illustrations given in Grand Trunk R. Co. v. Ives, supra, are indeed not intended to be exhaustive, though perhaps they have been taken as such; but in no view do I think that the facts here fall within either the principle or the illustrations.

The travel was not unusual; 400 motors a day is by no means great to-day. People coming from Leroy to the station did not use the crossing; a highway to the east was the more used thoroughfare. Nor was the view obstructed in any sense that is not true of half the highways in any countryside. Nothing obscured it at all, except a snow fence, between the boards of which a train inay be clearly seen, as the plaintiff's own photographs disclose. Until one gets within 100 feet of the track, even that fence leaves the whole length of track to the west plainly visible, except for a short distance, about the space of two telegraph poles. If such a crossing is to be treated as within the rule, I can see no escape from saying that a jury may impose such a duty in all cases where there is the slightest obstruction to a clear view both ways. I do not believe that Grand Trunk R. Co. v. Ives, supra, meant that.

In general, it seems to me most undesirable, in a period when the duties of carriers are being more and more defined by expert commissions, to expose them, when we can honestly avoid it, to the vagaries of juries, who are obviously incompetent to consider all the elements which should enter into any adequate judgment.

No. 110.

1. Appeal and error 273(5)—Exception to instruction implying liability if defendant failed to provide either of protective devices should have been taken.

In action for injuries to ship's engineer, caused when gauge on boiler blew out, clear and specific exception should have been taken to instructions which implied liability if defendant failed to furnish "either" a protecting screen or chains for operating valves.

2. Master and servant 101, 102(1)—Injuries held actionable, though employee might have devised means to protect himself:

That ship's engineer injured when gauge on boiler blew out, might have devised a means to protect himself from such injury, held not to preclude recovery for defendant's failure to furnish usual protective devices.

3. Master and servant 103(2)-Instruction denying recovery by servant, failing to perform duty of installing protective devices, held erroneously denied.

In action for injuries to ship's engineer, caused when gauge on boiler blew out, instruction that, if it was plaintiff's duty to see that protective devices were in place, and if they were available, but were not put in place, there could be no recovery, held erroneously denied.

In Error to the District Court of the United States for the Southern District of

New York.

United States Steel Products Company. Action by Lawrence J. Noble against the Judgment for plaintiff, and defendant brings

error. Reversed and remanded.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating and Vernon S. Jones, both of New York City, of counsel), for plaintiff in error.

Macklin, Brown & Van Wyck, of New York City (P. M. Brown, of New York City, and Thomas J. Brennan, of Brooklyn, N. Y., of counsel), for defendant in error.

Before ROGERS, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge. While Noble, the third engineer on defendant's steamship, was on watch, the glass on the water gauge on the center of the steamer's three boilers blew out a not unusual occurrence to remedy which a supply of extra glasses was kept on hand. After shutting off the valves or cocks on the gauge to stop the escape of steam from the opening, Noble obtained and insert

ed a new glass. Then, in opening the valves to let steam and water into the glass, he tapped the upper and lower arms of the valves, necessarily with a hammer handle, in order to do this evenly and to equalize the pressure. While he was so engaged the new glass blew out, resulting at least in loss of sight of one eye.

The only question which we deem it necessary to consider on this writ of error to reverse a judgment for over $39,000 is the correctness of the trial judge's charge to the jury in one or two respects.

[1] 1. If, as was customary, either a fine wire screen or guard had been around the glass to catch the fragments, or chains, attachable to the arms of the valves and falling down into the engine room, thereby permitting the valves to be closed and opened again from the engine room, had been in place, the accident could not have occurred. Concededly the chains were not in place. The jury resolved the serious conflict in the evidence as to whether or not there was such an available screen on board in plaintiff's favor. We note, in passing, that while, literally construed, the language of the charge in one place implies liability if either screen or chains were not provided, the evident slip in the use of "either" for "both" could not, in the light of the entire charge, have misled the jury; in any event, such an error should have been called to the attention of the court at the conclusion of the charge by clear and specific exception. [2] 2. Exception was duly taken to the following passage in the charge:

"This plaintiff is not obliged to invent some scheme, he is not obliged to provide some other method, which a skillful mechanic, perhaps, might provide. He is not under any such obligation. The fact that a skillful man or an inventive man might have some device which would be just as good as the thing provided does not enter into the case at all. The question is whether or not this defendant provided suitable appliances, whether they were there, and whether they were in proper condition to be used. That is the problem."

The chains or screen were the customary appliances to be furnished by defendant; that plaintiff might have had or had sufficient skill or inventive genius to enable him, on the spur of the moment, in the emergency, to invent some substitute, does not absolve defendant from its duty to supply the or

dinarily reasonable appliances, so that plaintiff might with reasonable safety perform his duties.

[3] 3. There is, however, a conflict as to whether, during Noble's watch, which had begun three hours before the accident, it was his or the chief engineer's duty to see that the arms of the valves were equipped with chains, wires or ropes, all of which were testified to have been available in the storeroom. The court did not submit this matter to the jury, and refused, as requested, to charge that

"If the jury finds that it was the plaintiff's duty to put either chains, ropes or wires on the arms which operated the valves at the top and at the bottom of the gauge glass, for the purpose of operating such valves on the engine room floor below the grating, and the jury also finds that the vessel was equipped with such chains or ropes or wires which could have been used by the plaintiff for that purpose during the time from 8 to 11 that he was on watch on the day of the accident, and the jury further finds that the accident was the result of failure of Noble to use such equipment, plaintiff cannot recover in this case."

In this respect we are of the opinion that there was reversible error.

The discussion in the charge as to contributory negligence was irrelevant. Neither contributory negligence nor assumption of risk is here involved. The question is whether or not the accident was due solely to Noble's neglect of duty to attach the available chains, ropes or wires. If the jury believed that such attaching was, as the chief engineer testified, only a minor repair-not such as required his specific permission, but, on the contrary, such as fell within the duty of the third engineer when, at the beginning of his watch, he found or knew that no chain was attached-then on authority and reason his failure to make the attachment is the sole proximate cause of his injury. As against another employee, the employer may not delegate the duty of keeping in reasonably safe condition the essential appliances; but the employee charged with the very duty of so keeping them cannot make his own neglect of that duty the basis of a claim against his employer. Great Northern R. R. v. Wiles, 240 U. S. 444, 36 S. Ct. 406, 60 L. Ed. 732; Frese v. C., B. & Q. R. R., 263 U. S. 1, 44 S. Ct. 1, 68 L. Ed. 131.

Reversed and remanded.

In re H. MAGEN CO., Inc.

Petition of MAGEN.

(Circuit Court of Appeals, Second Circuit. December 14, 1925.)

No. 34.

1. Bankruptcy 136(2)-Showing of large purchases preceding bankruptcy and inability to account for goods warrants inference of concealment.

Showing that bankrupt purchased large amounts of property shortly before bankruptcy, and has only nominal amount in his possession at time of bankruptcy, and is unwilling to explain what he has done with that purchased, warrants inference of concealment.

2. Bankruptcy 136(2)-Turn-over order warranted, though no definite property found in bankrupt's possession.

Turn-over order may properly issue, though no definite property or money is found in bankrupt's possession, where proved facts warrant inference that there is a withholding or con

cealment of assets unaccounted for.

3. Bankruptcy 136(2)-Evidence held to warrant turn-over order.

Evidence as to purchases and sales shortly preceding bankruptcy held to warrant inference that bankrupt's manager had in his possession or under his control money or property concealed and unaccounted for, warranting turnover order.

4. Bankruptcy 136 (2)-Property traced to bankrupt's possession and unaccounted for may be presumed under bankrupt's control.

When property is traced into bankrupt's possession, and he fails to produce or satisfactorily explain what became of it, court may infer that it is still in his possession or under his control, as affects propriety of turn-over

order.

der is warranted stated.

Turn-over order should not be granted, except on clear proof that title to property is in trustee, or is part of bankrupt's estate, and that person subject to order at time of bankruptcy and when order was made had possession or control of money or property to be turned over.

Petition to Revise Order of the District Court of the United States for the Eastern

District of New York.

In the matter of the bankruptcy of the H. Magen Company, Inc. On petition of Herbert Magen to revise turn-over order of referee, affirmed by District Court. Order affirmed, and petition to revise denied. See, also, 3 F.(2d) 33.

An involuntary petition in bankruptcy was filed against the above-named bankrupt on February 25, 1924, and an order of adjudication was entered on March 15, 1924.

The trustee of the bankrupt petitioned the court on July 1, 1924, and represented that the bankrupt at that time had in his possession and under his control merchandise belonging to his estate in bankruptcy, to which the trustee was entitled, of the value of $106,531.66. This petition was based on information from reports made by certified public accountants, who examined the books and records of the bankrupt for the receiver pursuant to a court order, and from examinations conducted under section 21a of the Bankruptcy Act (Comp. St. § 9605). The court was asked to enter an order requiring the bankrupt immediately to turn over and deliver to the trustee "merchandise, consisting of yarn, of the value of $106,531.66."

On the presentation of this petition, and an answer denying its allegations, a hearing was had before the referee in bankruptcy, and it resulted in a turn-over order. In a decision rendered on November 25, 1924, the referee said:

"In conclusion, I feel it only proper to say that I am thoroughly convinced that the respondent is not a victim of incomplete bookkeeping or untruthful testimony by others. I believe he planned the entries in his books and records and the alleged sales in such a manner as to afford him an opportunity to cover up property. I believe the amount of such property is at least $60,701.75. An order may be submitted in conformity with this memorandum."

In a second decision, rendered by him on November 29, 1924, he made certain corrections in his figures, the net result of which was to reduce the amount of the property to be turned over by him from $60,701.75 to $39,299.37. And he concluded his second decision as follows:

"Upon the record, I find that the respondent has failed to explain or account for his failure to turn over to the receiver or trustee cotton and silk yarn to the value of $39,299.37. I find that he is in possession or control of such merchandise. He must turn over such amount to the trustee. In lieu of the merchandise he may turn over cash in said amount. In conclusion, I feel it only proper to say that I am thoroughly convinced that the respondent is not a victim of incomplete bookkeeping or untruthful testimony by others. I believe he planned the entries in his books and records and the alleged sales in such a manner as to afford him an opportuni