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lision who testified, sat in front of the grocery, less than 50 feet from the track, and concur that the whistle was sounded at the water tank, which is 1,500 feet north of the Maple street crossing, and within the statutory limits for the signal, and that at that time the deceased was in front of the grocery, and about 50 feet from the track. Shaw, who drove across the Maple street crossing eastward, just escaping the train, heard the whistle, and located it near the water tank. Lampson, who was on the west side of Maple street, 250 feet from the track, heard it sounded when the train was, as he thought, 400 feet south of the water tank, and also at the Black Jack crossing, one quarter of a mile further north. Baughman, who was on Main street, testifies positively that it was sounded. Clark, who was at the depot, 75 feet south of Maple street, heard the rumble of the approaching train. These are the plaintiff's witnesses, and there is nothing in the record to discredit them. In the very nature of things, their affirmative testimony that the warning was given must be accepted as proof of that fact, notwithstanding an equal or greater number of witnesses failed to notice it, from whatever cause. There is in such cases no conflict of evidence as to the matter in question. The observation of the fact by some is entirely consistent with the failure of others to observe it, or their forgetfuiness of its occurrence. Stitt v. Huidekopers, 17 Wall. 393; Railroad Co. v. Elliott, supra. Accepting therefore, as an established fact, that the whistle was sounded, and was heard by the deceased, and yet he persisted in attempting to cross the track ahead of the train, there can be no doubt that he should be held to be the author of his own misfortune. The same result must follow if he neglected the means of knowledge which would have informed him of his danger, and failed to use his faculties, through inattention or otherwise. Dennison, one of the only two witnesses who testified to the circumstances of the accident says that "Horn went across like any man that was driving across, supposing the track was all clear;" that his horse was walking when he passed the grocery, and when he went on the crossing. The latter fact is confirmed by Scott, the other spectator who was with Dennison. No one saw Horn look or listen. There was nothing in his conduct to indicate that he had any apprehension of the proximity of the train. It is true that his horse showed an inclination to halt in front of the grocery, 50 feet from the track, and again while on the side track, within five or six feet of the main line. These attempts, however, were manifestly not prompted by the caution of the driver, but by the instinct of the animal; for on each occasion the deceased urged him on. The only inference that can be drawn from these facts is that the deceased neither heard nor saw the coming train, nor did he make any attempt to do so. While it is true that his view of it was to some ex. tent obstructed by the presence of the freight train on the east side track, and by other objects in the vicinity, the decedent carried with him, in the cover of his vehicle, and the position of his seat, the greatest obstruction to a view of the train. These conditions in. creased the dangers of the crossing, and should have stimulated his vigilance in approaching it, familiar as he was with the locality,

V.54f.no.2-20

and knowing, as he presumably did, that the train would not stop at Utica, and that it was momentarily expected, as the position of the freight train, awaiting its passage, unmistakably denoted. It is undisputed that he could not see the train from his seat in the wagon, and equally certain that he made no effort to see it, or listen for its approach. From the time he reached the grocery until the collision, he was not seen to move from his seat, or change his position. While his conduct is persuasive that he did not hear the whistle, or the coming of the train, it is clear that, had he stopped and listened, he would have heard, at least, as others did, the warn. ing of the whistle, if not the noise of the train. Assuming the correctness of the estimated speed at 50 miles per hour, it was evidently but 75 feet from the crossing when Horn's horse halted in his walk on the side track, not eight feet from the main track. It is incredible that the decedent, if his sense of hearing was not blunted, could have failed to notice the approach of the train; and it is obvious that, if he did hear it, he must have made a fatal miscalculation as to its proximity when he urged the horse over the crossing. There is no evidence that there was anything calculated to divert his attention, prevent his hearing, or lull him into security. In short, there is nothing to extenuate the recklessness of his approach to the crossing. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railroad Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125; Haas v. Railroad Co., 47 Mich. 402, 11 N. W. Rep. 216. It is unnecessary to pass upon the omission of the plaintiff in the court below to give evidence of special damages.

The judgment of the circuit court must be affirmed, with costs.

SHEPPARD V. NEWHALL et al.
(Circuit Court of Appeals, Ninth Circuit. January 30, 1893.)

No. 41.
1. SALE-STOPPAGE IN TRANSITU-NATURE OF Rigut.

The true nature and effect of the right of stoppage in transitu is not to rescind the sale, but to enable the seller to enforce his lien for the price, and to that end he is entitled to retake possession, by suit if necessary, and he must then hold the goods until the expiration of the credit, so as

to be able to deliver them on payment of the price. 3. SAME_WHEN RIGHT OF STOPPAGE Ends.

When goods sold have left the hands of the carrier, reached their dest nation, and the purchaser has disposed of them to one who gives a bond for the payment of the customs duties, and deposits them in his own name in a bonded warehouse, the seller's power to exercise the right of stoppage

in transitu is gone. 8 SAME-BILL OF LADING-INDORSEMENT.

An ocean bill of lading was drawn to "E. H., or assigns." The drawee was a railroad agent at New York, who attended to the transshipment of goods, and he shipped the goods to San Francisco, and transmitted the bill of lading to the purchaser without indorsement The purchaser Indorsed the bills, and delivered them as security for advances Before the arrival of the goods the purchaser became insolvent, and the shipper gave notice of stoppage in transitu. Held, that the shipper's right to retake rossession of the goods was unaffected by the purchaser's indorsement oud transfer of the bill of lading, as, “E. H." having failed to indorse them.

no title to the goods passed. 47 Fed. Rep. 468, reversed. St. Paul Roller

Mill Co. v. Great Western Despatch Co., 27 Fed. Rep. 434, followed. 4. APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW.

In an action to recover personal property, an objection that the complaint alleged that plaintiff was owner thereof, whereas the proof showed that he was entitled to possession under a vendor's lien, cannot be raised for

the first time in the appellate court. .In Error to the Circuit Court of the United States for the Northern District of California.

Action by Winter Byard Sheppard, 'doing business under the firm style of Sheppard & Co., against Edwin W. Newhall and Walter S. Newhall, doing business under the firm style of Newhall's Sons & Co. to recover possession of personal property. Judgment for defendants. 47 Fed. Rep. 468. Plaintiff brings error. Reversed.

Statement by ROSS, District Judge:

This is an action brought to recover the possession of 12 cases of merchandise, consisting of woolen goods, etc., or their value, manufactured in and shipped from England by the plaintiff in error, who was also plaintiff in the court below, on an order given by Robert Gordon, a tailor doing business in the city of San Francisco, Cal., under the name of Gordon Bros. The goods were shipped in three lots,-six cases, numbered, respectively, 99 to 104, both inclusive, covered by one ocean bill of lading; two cases, numbered 105 and 106, respectively, covered by another ocean bill of lading; and four cases, numbered, respectively, 107 to 110, both inclusive, covered by a thiri ocean bill of lading. The goods were shipped by way of New York, and they were, by the bill of lading, made deliverable to E. Hawley, or assigns. Hawley was a railroad agent in New York, who attended to the transshipment of goods at that point. He received the goods in question from the ship at New York, and shipped them by rail to San Francisco, and, without indorsing the bills of lading, transmitted them to Gordon, at San Francisco, together with the annexed invoice of the goods, and the inland transportation entry and railroad receipt. On receipt of the bills of lading and accompanying papers, Gordon indorsed and delivered them to the defendants as security for certain moneys advanced to him at the time on the strength of such security, and also as security for other and larger advances that defendants in error had previously made to him, and which had not been repaid. All of the goods arrived in San Francisco, and those contained in cases 99 to 106 inclusive, were, prior to October 13, 1890, entered in the customhouse at San Francisco, and deposited in a bonded warehouse by the defendants in error, in their name, to await the payment of duties thereon. On October 13, 1890, Gordon became insolvent. On October 18, 1890, and before the cases numbered, respectively, 107 to 110, inclusive, had arrived in San Francisco, the plaintiff in error gave to the railroad company having the goods in transit notice of his claim and right of stoppage in transitu. On the arrival of these four cases in San Francisco, which was prior to October 30, 1890, the defendants in error paid the duty on them, and took them into their possession. On October 30, 1890, plaintiff in error also served on defendants in error a notice of his claim of right to stop the goods in transit. On November 8th following, plaintiff tendered to the defendants in error, in lawful money of the United States, $3,536.47, which he then supposed was the amount, with interest, that they had advanced to Gordon, and paid out on the goods in question, at the same time offering to pay them the exact amounty

, with interest, that they had so paid, if the amount tendered was not correct; both of which offers were by the defendants in error refused; and they also refused to state the amounts they had advanced and paid out on the goods, and also refused the demand thereupon made upon them by the plaintiff in error for the possession of the property. The plaintiff then commenced the present suit to recover from the defendants possession of all of the goods, or their value, basing his right to do so solely upon the allegation that on November 8, 1890, he was the owner of the goods. The suit having resulted in a

judgment adverse to him in the court below, he brought the case here by writ of error.

The first assignment of error grows out of a motion made by the plaintiff in advance of the trial for an order on the defendants to give the plaintiff an Inspection and copies of certain accounts and papers, which in its scope went beyond the matters bearing upon the issues in the case. The application was made pursuant to the provisions of section 1000 of the Code of Civil Procedure

the state of California, which reads as follows: “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper, in his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts of the book or the document or paper from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume them to be such as he alleges them to be; and the court may also punish the party refusing for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents when he is examined as a witness."

The court below granted the motion in so far as to allow the plaintiff av inspection and copies of (1) the original bills of lading covering the 12 cases of goods described in the complaint; (2) all accounts relating to money, advanced upon the hypothecation of the 12 cases of goods; the court at the same time announcing that, should it appear at any time during the trial of the cause that the defendants were in possession of any books or papers material to the cause of the plaintiff, defendants would be required to produce them, and, if a production of such books or papers should make it proper to grant the plaintiff a postponement of the trial, such postponement would be ordered. In all other respects the inotion was denied, to which ruling the plaintiff excepted. At the trial the defendants offered in evidence the three ocean bills of lading, with the accompanying papers, consisting of the invoice, inland transportation entry, and letter from Hawley, the consignee named in the bills of lading. To each of the bills of lading the plaintiff objected, on the ground that neither of them was indorsed by the consignee therein named. The court overruled the objection, and admitted the bills of lading in evidence, to which the plaintiff excepted. The ruling of the court in this particular is the basis of the 2d, 3d, 4th, and 5th assignments of error.

The witness E. W. Newhall, having testified, among other things, that the defendants, from and including August 20, to October 3, 1890, advanced to Gordon $14,500 on the security of different goods and bills of lading, was asked by counsel for the plaintiff, “What became of the goods pledged to you for advances up to October 30, amounting to $14,500?” To this question counsel for defendants objected, on the ground that it was irrelevant, immaterial, and incompetent. The court sustained the objections, and the plaintiff reserved an exception. The witness was also asked by counsel for plaintiff, "On the 8th day of November, 1890, how much money was owing to you on these bills of lading covering the cases,--the subject-matter of this action?” Like objections of the defendants were sustained by the court, and the plaintiff excepted. These rulings are assigned for error in the sixth assignment.

Counsel for the plaintiff also moved the court to order the defendants to produce for his inspection their firm books, showing all transactions had with Robert Gordon, and the amounts realized from sales of pledged property, and the dates of the various receipts of money produced by such sales, for the purpose of ascertaining whether or not the advances theretofore made by the defendants to Robert Gordon, doing business as Gordon Bros., had not been repaid on or before the 8th day of November, 1890. This motion was denied by the court, and the plaintiff reserved an exception, and assigns the ruling for error in the eighth assignment.

Vincent Neale, for plaintiff in error.

Henry Ach, (Rothchild & Ach, on the brief,) for defendants in error.

Before McKENNA, Circuit Judge, and ROSS and KNOWLES, District Judges.

ROSS, District Judge, (after stating the case as above.) It is now well settled both in this country and in England that the true nature and effect of the right to stoppage in transitu is simply to restore the goods to the possession of the vendor, so as to enable him to exercise his rights as an unpaid vendor, not to rescind the sale. 2 Benj. Sales, (30 Ed.) pp. 1112--1115, and cases there cited. In California it is, in effect, so provided by statute. Civil Code Cal. § 3080. To enforce his rights, the vendor must be, and is, entitled to retake the possession of the property, and must hold it until the expiration of the credit, so as to be able to deliver it upon the payment of the price; for up to that time the vendee has the right to pay the price, and take the property. Babcock v. Bonnell, 80 N. Y. 244. If not paid at the time stipulated, in what way the vendor should proceed to enforce his lien it is not here necessary to decide. Courts of equity entertain jurisdiction for the enforcement of such liens, and there are also statutory provisions bearing on the subject. 2 Benj. Sales, (3d Ed.) pp. 1113, 1114, and cases there cited; Civil Code Cal. $$ 3076--3079, and cases cited in notes thereto. The right to retake possession of the property, where the right to stop it in transit exists, necessarily implies a right to maintain an action for its recov. ery, where resort to suit is necessary. In California the right to "resume possession” is given by statute. Section 3076 of the Civil Code reads:

"A seller or consignor of property, whose claim for its price or proceeds has not been extiuguished, may, upon the insolvency of the buyer or consignee becoming known to him after parting with the property, stop it while on its transit to the buyer or consignce, and resume possession thereof."

In the present case it became necessary for the plaintiff to sue to regain possession of the property; and, in doing so, he alleged in his complaint, as amended, as the basis of his right to recover its possession, that he was the owner of the property on the 8th day of November, 1890, and that, the property having theretofore come into the possession of the defendants, plaintiff, on the day named, demanded its possession, which demand was refused by the defendants, who continued to withhold its possession from the plaintiff. The amended complaint contains no other allegation of the plaintiff's right to its possession than the allegation of ownership imports; and as the facts show that the plaintiff was not the owner of the property at the time stated in the complaint, or at the time of the institution of the suit, it is here urged for the defendants in error that the complaint, as amended, is insufficient to support a recovery by the plaintiff, even if a lien upon the goods in his favor exists. But this objection was not made in the court below, and it is not permissible to hold in ambush a point of variance that does not go to the merits of the controversy between the parties, and raise it for the first time in the appellate court. A presumption of the right to the immediate possession of property flows from its ownership, and therefore the allegation contained in the amended complaint in the

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