Co., 17 Fed. Rep. 882, 886; Bunt v. Mining Co., 138 U. S. 483, 485, 11 Sup. Ct. Rep. 464; Railroad Co. v. Jones, 95 U. S. 439, 443; Kane v. Railway Co., 128 U. S. 91, 94, 9 Sup. Ct. Rep. 16; Goodlett v. Railroad, 122 U. S. 391, 411, 7 Sup. Ct. Rep. 1254; Kresanowski v. Railroad Co., 18 Fed. Rep. 229, 234, 235; Railroad Co. v. Nickels, 4 U. S. App. 369, 1 C. C. A. 625, 50 Fed. Rep. 718; Railroad Co. v. Davis, 53 Fed. Rep. 61.

But the degrees of care in the use of a place in which work is to be done, or in the use of other instrumentalities for its performance, required of the master and servant in a particular case, may be, and generally are, widely different. Each is required to exercise that degree of care in the performance of his duty which a rea sonably prudent person would use under like circumstances; but the circumstances in which the master is placed are generally so widely different from those surrounding the servant, and the primary duty of using care to furnish a reasonably safe place for others is so much higher than the duty of the servant to use reasonable care to protect himself in a case where the primary duty of providing a safe place or safe machinery rests on the master, that a reasonably prudent person would ordinarily use a higher degree of care to keep the place of work reasonably safe if placed in the position of the master who furnishes it than if placed in that of the servant who occupies it. Of the master is required a care and diligence in the preparation and subsequent inspection of such a place as a room in a mine that is not, in the first instance, demanded of the servant. The former must watch, inspect, and care for the slopes through which and in which the servants work as a person charged with the duty of keeping them reasonably safe would do. The latter has a right to presume, when directed to work in a particular place, that the master has performed his duty, and to proceed with his work in reliance upon this assumption, unless a reasonably prudent and intelligent man in the performance of his work as a miner would have learned facts from which he would have apprehended danger to himself. Russell v. Railway Co., 32 Minn. 230, 20 N. W. Rep. 147; Hutchinson v. Railroad Co., 5 Exch. 343; Gibson v. Railroad Co., 46 Mo. 163; Cook v. Railroad Co., 34 Minn. 47, 24 N. W. Rep. 311.

The degrees of care required of the master and servant also differ, because defects in a piece of machinery or in the roof of a mine that to the eye of a competent inspector, such as the master employs, portend unnecessary and unreasonable risks and great danger, may have no such significance to a laborer or miner who has had no experience in watching or caring for machinery or roofs of slopes in a mine, and the latter is not chargeable with contributory negligence simply because he sees or knows the defects, unless a reasonably intelligent and prudent man would, under like circumstances, have known or apprehended the risks which those defects indicate. The dangers, and not the defects merely, must have been so obvious and threatening that a reasonably prudent man would have avoided them in order to charge the servant with contributory negligence. Kane v. Railway Co., 128 U. S. 94, 9 Sup. Ct. Rep. 16; Railway Co. v. McDade, 135 U. S. 570, 573, 10 Sup. Ct. Rep. 1044; Cook v. Railroad Co.,

34 Minn. 45, 47, 24 N. W. Rep. 311; Myers v. Iron Co., 150 Mass. 125, 22 N. E. Rep. 631.

Applying these rules of law to the facts of this case, ought the court below to have instructed the jury to return a verdict for the defendant? Ordinarily, in actions like the present one, questions of negligence are for the jury. The ordinary care which the parties are required to use in the discharge of their respective duties to each other so varies with the situation of the parties and the circumstances of each particular case, the measurement of it depends so much upon knowledge and experience of practical business affairs, that the policy of the law to relegate these questions to the determination of 12 practical men has long been settled. It is only when the facts are undisputed, and are such that reasonable men can fairly draw but one conclusion from them, that the question of negligence is ever considered one of law for the court. Railway Co. v. Ives, 144 U. S. 409, 417, 12 Sup. Ct. Rep. 679; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. Rep. 569; Railroad Co. v. Pollard, 22 Wall. 341; Bennett v. Insurance Co., 39 Minn. 254, 39 N. W. Rep. 488; Abbett v. Railway Co., 30 Minn. 482, 16 N. W. Rep. 266.

This record is far from presenting a case where all reasonable men must draw the inference either that the plaintiff was guilty of, or the defendant free from, negligence. The testimony was conflicting as to the place and cause of the injury. As to the defendant's negligence, it appeared that the roof in the dip slope where this accident happened was composed of a clay rock about three feet thick, that defendant's inspectors, whose duty it was to keep this roof reasonably safe, knew to be a treacherous rock that needed constant watching; a rock that water disintegrated, and caused to become loose and fall. It appeared that the only way such a roof could be properly tested was by sounding it with the hand or a pick or cane, and there was no testimony that it had been so tested or sounded for weeks, although the chief inspector testified that, in his estimation, this was not a good roof; that it was one that might possibly go, but needed watching; that through the greater part of this dip slope the roof had proved so poor that the defendant had supported it with timber; that it had not done so at this point, and that at a point but a few feet distant, where the two slopes joined, this rock had so crumbled and fallen that defendant had blasted it all down, and removed it, two months before; and there was testimony that the roof at the place of the accident had long been wet. In view of this testimony, it certainly was a fair question for the jury whether or not the defendant's failure to protect this particular portion of the roof by timbers or to remove it by blasting was not a lack of ordinary care. As to the contributory negligence of the plaintiff, in view of the facts that he had been directed to go to work in this dip slope but two weeks before; that he had a right to presume, in the first instance, that the defendant was inspecting and keeping this roof reasonably safe; that he had never been employed in caring for or inspecting roofs; that he was working and moving in darkness, made visible only by his lamp in his cap; that the roof at this point was too high for him to sound with his hand; that, although he had seen

stone fall once from this place, pieces had also fallen all over the slope; that miners who were working in the same slope, and passing under this roof frequently, continued at their work without apparently apprehending danger from this place; and that plaintiff himself testified that he apprehended no more danger here than from any other place in the roof,-no court would be justified in holding that it conclusively appeared from this evidence that a man of ordinary intelligence and prudence would, under like circumstances, have apprehended the risk and danger. The court below was right in leaving all these questions of negligence to the jury.

In the charge to the jury the court below stated that the rule which required the defendant to deliver empty cars at the nearest switch was obviously a measure of convenience to the miners, and not a measure of safety; that it could not have much weight in the determination of this case; and declined to charge, as requested by defendant, that, if the defendant employed a sufficient number of drivers to deliver the empty cars in accordance with the rule, plaintiff was not in the line of his duty when he went beyond the nearest switch for a car, and therefore could not recover; and this ruling of the court was assigned as error. There was no error in this ruling. There was no evidence that plaintiff ever knew of this rule. The defendant had constantly disregarded it in its dealing with him and his partner, and had compelled them to go to the main slope for every car they had received during the two weeks they had worked in this air course. The roof that fell was one under which the plaintiff was obliged to pass in going to and returning from his work, and when the defendant failed to deliver cars to him he was in the line of his employment in going out under this roof to get them.

The defendant requested the court to charge the jury as follows: "If you find from the evidence that the plaintiff, prior to receiving the injuries complained of, had knowledge of facts such as would lead a man of ordinary prudence to believe that there was danger of injury from falling rock at the place where the injury occurred, and with such knowledge continued to go to that place without notifying the proper officers of the defendant company of such danger, and, while continuing to go there, received the injury complained of, then, and in that case, the plaintiff cannot recover.

The court refused to give this request, but in his own language, in his general charge, explained the rule referred to therein, and the defendant assigns this as error. The request fairly states the law, and might well have been given. The charge of the court upon this subject is quite extended, and will not be here repeated. It is sufficient to say that it has been carefully considered, and we are satisfied that it substantially states the rule sought by the defendant, so that the jury could not have been misled by it. It is not error to refuse to give requests of counsel where the rules of law embodied in them are properly laid down in the general charge of the court. Railway Co. v. Washington, (8th Circuit,) 4 U. S. App. 121, 1 C. C. A. 286, 49 Fed. Rep. 347, 353.

This disposes of all the errors assigned in this case, and the judg ment below is affirmed, with costs.

CHICAGO CHEESE CO. v. FOGG.

(Circuit Court, N. D. Ohio, E. D. December 8, 1892.)

1. CONTRACTS-CONSTRUCTION-EXTRINSIC EVIDENCE.

F. contracted to sell and deliver to the C. B. Co. a large amount of cheese, a small portion of which was delivered. The C. B. Co. soon after failed, and, in consideration of indebtedness, by a bill of sale in writing, sold and transferred to A. S. W. & Co. the cheese then on hand, together with outstanding accounts due the assignor. Soon afterwards the assignee transferred to plaintiff all its rights under the assignment. In a suit by plaintiff against F. for $7,000 damages for failure to deliver the balance of the cheese covered by the contract with the C. B. Co.. and for $400, being the amount advanced to defendant upon the unfulfilled contract, the court heard oral testimony from the parties to the transaction, for the purpose of ascertaining what the parties meant by the terms of the several bills of sale. From such testimony it appeared that, after a detailed examination by one of the firm of A. S. W. & Co. before the assignment was made to such firm, the only esti mate put upon the assets representing the firm's claims against defendant was the $400; thus substantially admitting that no value was placed upon the claim sued upon in the first cause of action. Held, that in the light of this extrinsic evidence the assignments did not transfer any unliquidated claim for damages by reason of defendant's failure to deliver the balance of the cheese covered by contract with the C. B. Co.

2. SAME-PROVINCE OF COURT AND JURY.

The construction of the written assignments in the light of the extrinsic evidence was not a question of fact for the jury, but was one of law for the

court.

3. SAME-JURISDICTIONAL AMOUNT-PARTIAL FAILURE OF CAUSE OF ACTION. Plaintiff having failed to show any title to the contract, his cause of action thereunder entirely failed, and the suit remained as one for $400, which was insu cient to support the jurisdiction of the circuit court, and a verdict was thereupon properly directed for defendant.

At Law. Action by the Chicago Cheese Company against W. K. Fogg. A verdict was directed for defendant. On motion for new trial. Overruled.

Williamson & Cushing and J. S. McClure, for plaintiff.
Wm. R. Day and J. W. Crane, for defendant.

RICKS, District Judge. The plaintiff's petition in this case sets forth two causes of action. In the first it claims damages for the breach of an alleged contract made on August 16, 1886, between the defendant and the Charles Baltz Company, of Chicago, Ill., by which the defendant agreed to sell to the said Charles Baltz Company 1,000 loaves of domestic Swiss cheese, and to deliver the same, as called for by it, at Chicago, Ill., on or before the last day of June, 1887, at the prices named, and varying as to the time for deliveries, and on payments specified, the loaves of cheese to vary from 125 to 180 pounds in weight, and to average not less than 150 pounds. In September, October, and November of the same year, the defendant delivered on said contract some 7,429 pounds of the 150,000 pounds contracted for, and received pay for the same. The vendee having failed, and being indebted to A. S. White & Co. something over $17,000, it assigned, transferred, and sold to said firm, on the 14th day of March, 1890, in consideration of $15,000, "the following goods and chattels, to wit, the cheese then on hand, the boxes and cheeses to be delivered on

hand at 73 Water street, together with the outstanding accounts due to Charles Baltz & Company." Five days thereafter, to wit, on the 19th of March, the said firm of A. S. White & Co. sold and transferred to the plaintiff, the Chicago Cheese Company, for a consideration of $15,000, "all the cheese and empty boxes now on hand or in stock, belonging to said A. S. White & Co., purchased by them from the Charles Baltz Company, or to which the said A. S. White & Co. are entitled by reason of their said purchase."

The last vendee brings this suit against the defendant, and claims damages in its first cause of action in the sum of $7,000, with interest, for the defendant's failure to deliver the balance of Swiss cheese covered by said contract of August 16, 1886. It claims in its second cause of action judgment for $400 and interest, for money advanced and paid by the Charles Baltz Company to the defendant on or about January 25, 1887, upon said unfulfilled contract of August, 1886. The defendant, in his answer, denied that the plaintiff had any right or interest in said claim upon which to base this suit, and denied any breach of contract, or that there was anything due to the plaintiff on either cause of action. The plaintiff, to maintain the issues made on its behalf, and to show its title to the claim sued upon, offered the two bills of sale or assignments above cited. The defendant objected to the introduction of said assignments, because upon their face they disclosed the fact that the claims sued upon in the first and second causes of action were not included in either of said instruments.

Upon the authority of the cases of Bradley v. Steam Packet Co., 13 Pet. 89, and of Reed v. Insurance Co., 95 U. S. 23, the court decided to hear oral testimony from the parties to the transaction, so as to put the court in the position of said parties at the time the transfers were made; not for the purpose of reading into those assignments or contracts any new conditions, or varying or changing their meaning, but for the purpose of ascertaining what the parties themselves meant by the terms used in the written bills of sale executed. For this purpose the court heard the oral testimony of Charles Baltz and George H. Wessling, the former the president of the Charles Baltz Company, and the latter the bookkeeper. Some of the original books of the Charles Baltz Company were offered, and entries therein relating to the various transactions pertaining to this contract were read and offered in evidence. Depositions of members of the firm of A. S. White & Co. were also read. All this testimony was heard by the court for the sole purpose of enabling it to intelligently construe the bills of sale or assignments upon which the plaintiff relied to establish its right and title to the claims upon which its suit was based.

After such testimony was heard, the defendant moved the court to direct the jury to return a verdict for the defendant, for the reason that the written assignments referred to did not in fact transfer to the plaintiff the claims sued upon in the first and second causes of action. It appears from said testimony, in addition to the facts already stated, that before the assignment of March 14, 1890, from the Charles Baltz Company to A. S. White & Co. was made, Mr. Ulric King, one of the said firm of A. S. White & Co., made a detailed examination into the assets of the Charles Baltz Company, and estimated their value as