66

Why shift the rule, and say the personalty is the primary fund to pay, because it is the personal debt of the decedent?" In strictness, the canons of descent devolved upon the heirs only the excess of the market value of the realty over the incumbering, unpaid purchase money, with the privilege to them, upon discharging that debt, to be invested with the fee simple. The intestate took just this interest in the realty purchased, and no more was transmitted to his heirs. He consented to the retention by his vendors of so much of the realty purchased as would be sufficient to pay its price, and thereby appropriated and set apart that interest as a means charged with the payment of the price of the realty. Presumably, the purchases from Moffatt and Sanford were on speculation, and intestate intended to pay the debts credited in the purchase from the proceeds, when sold. As between the heir and the distributee, should not that intent of intestate to make the realty first liable to pay off the burden be effective, not as an intent evidenced by a will, but one impressed upon and woven into the very texture of the transaction by the intestate himself? Does public policy, or public good, or the uniformity of the rules for administering the estates of decedents favor or oppose the settlements of these open questions, as already indicated? It can only be a practical question when the distributee and heir are not the same person, which is rarely the case. Under our laws of distribution and

descent, the heir and distributee are never different persons, except when one dies circumstanced as was Thomas O'Conner, or without wife, or husband, or children, when the distributee is a parent, old, and perhaps needy.

The intestate was largely engaged in realestate speculation in a growing city, where real estate was rapidly enhancing in value. The purchases were made with the expectation of early sales, at fine profits. He meets a sudden death. No testament is made, providing for his childless widow. If the personalty is to relieve the realty of the incumbrance for its purchase money, the heir will be enriched, and the widow and distributee impoverished. The superior equity is certainly in her favor. The heir is in a court of equity, asking that equity be done. Will equity reimburse the heirs at the expense of the distributee?

The reasoning upon the first error assigned by complainant is equally applicable to the third 1,000-dollar note given to the intestate's vendors in the purchase of the McKinney land. We reach a conclusion as to this error with less certainty than we had as to the McKinney incumbrance; but still we feel justified in holding that the heirs are not entitled, in equity, to be reimbursed for sums paid upon the Moffat and Sanford parcels of land from the proceeds of said lands. This disposes of the third assigned error of complainant adversely to the claim of the heirs at law, and upon the whole case, the chancellor is in error, and should be reversed, and the heirs at law pay the cost of this cause in this and the court below. Entertaining these views, I am compelled to dissent from the opinion of the majority of the court in this case.

v.

J. M. WHITE, Appt., CINCINNATI, NEW ORLEANS & TEXAS PACIFIC R. CO.

APPEAL by plaintiff from a judgment of the Circuit Court for Grant County in favor of defendant in an action to recover damages for personal injuries alleged to have resulted from defendant's negligence. Reversed.

The facts sufficiently appear in the opinion. Mr. J. J. Landram, for appellant:

NOTE.--Carrier, unsafe condition of platform. See notes to New York, C. & St. L. R. Co. v. Doane (Ind.) 1 L. R. A. 157; Kelly v. Manhattan R. Co. (N. Y.) 8 L. R. A. 74: Missouri Pac. R. Co. v. Wortham (Tex.)

3 L. R. A. 368,

Messrs. De Jarnette & Dickerson, with Mr. C. B. Simrall, for appellee:

A party cannot recover for an accident occasioned by the use of a defective platform, after he had seen the defects, had his attention expressly directed to them, and knew its unsafe condition when he went on it." Bogenschutz v. Smith, 84 Ky. 331. There can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained.

Beach, Contrib. Neg. § 7, and cases cited;

Sullivan . Louisville Bridge Co. 9 Bush, 81; Jacobs v. Louisville & N. R. Co. 10 Bush, 263; Louisville & N. R. Co. v. Collins, 2 Duv. (Ky.) 114; Louisville & N. R. Co. v. Robinson, 4 Bush, 507; Louisville C. R. Co. v. Goetz, 79 Ky. 442; Kentucky Cent. R. Co. v. Lebus, 14 Bush, 518; Paducah & M. R. Co. v. Hoehl, 12 Bush, 41; Wharton, Neg. § 300, and cases cited, and see also 332; Shearm. & Redf. Neg. $25, and cases cited; 2 Thompson, Neg. p. 1146, notes; Smith, Neg. 2d Eng. ed. p. 227, and cases cited; Pollock, Torts, p. 374; Wood, Mast, and S. § 319, and cases cited; Smith, Mast. and S. 4th Eng.

ed. p. 344; Patterson, Railway Acc. L. p. 45, and cases cited.

Holt, J., delivered the opinion of the court: The appellant sues for damages for injuries sustained by him while assisting his employer, a shipper over the appellee's road, in loading stock at night upon its cars. The apron or platform connecting the stock-chute with the car into which the cattle were being driven gave way, precipitating the appellant against the side of the car. The evidence tends to show that the apron was too short,-not long enough to lap sufficiently far over on either the chute or the car to insure safety to one upon it; that it was not fastened to the chute by hinges or otherwise, as is usual, and had been out of repair for a considerable time; that all this was known to the Company, through its agent, previous to the time of the injury, but was likewise known to the appellant. It further appears that the station where the accident occurred was the nearest and most convenient point for shipping the stock, and that but the one chute and apron were provided by the Company. The lower court, at the close of the appellant's testimony, peremptorily instructed the jury to find for the Company upon the ground, as is admitted in argument, that the appellant was aware of the defective condition of the platform, and could not therefore recover.

Such an instruction should not be given, unless, conceding the truth of the evidence offered, and of every fact which it conduces to prove, the party has no case. It is contended that the knowledge of the appellant, prior to the time of the injury, of the unsafe condition of the platform, forbids a recovery. If so, the action of the trial court was correct. Let us see. It is not properly a question of contributory negligence. It is not claimed, and there is no testimony tending to show, that the appellant was negligent in the manner of using the platform. So far as appears, it was the usual and careful use of it; but the trouble consisted in the fact that it was defective. The rule is well settled by a uniform current of decisions, so numerous that citation is unnecessary, that a railroad must keep its platforms and approaches to which the public do, or will naturally, resort in doing business with it, in a safe condition for such use. This is one of the duties it owes to the public. It goes hand in hand with its franchises and extraordinary privileges. The appellant had a right to be where he was, and engaged as he was, when he was injured. The Company had invited his presence by holding itself out as a carrier of stock. It had impliedly said to the public: "The platform is safe for the purposes intended, if reasonable care be exercised in its use."

It is said, however, that the appellant knew this was not true, and that he therefore used it at his peril. This is, however, unlike the case of a servant against the master for an injury caused by a defective state of the machinery or premises or materials provided by the latter for the work of the former. The master is not bound to employ the servant. The latter cannot dictate to him in this respect. Not only the duty rested upon the Company, however, so long as it held itself out to the public as a carrier, of providing safe appliances for such pur

| pose, but the public had a right to demand it, and to use the road for travel and shipping purposes. It was bound to keep its platforms and approaches essential to travel or shipment in a safe condition; and public policy forbids that it should be allowed to protect itself from liabili ty for injurious consequences resulting to persons from its failure to perform this important duty upon the ground that they knew the platform or approach was defective.

Suppose a passenger platform at a depot is defective. A person desiring to take passage knows it. Is he, therefore, to forego going, or else take the risk of injury without remedy, notwithstanding the exercise of reasonable care upon his part in attempting to board the train? Surely not. In this case the Company had provided but the one chute and the one apron for the shipment of stock at the station. It was inviting patronage in this way by the public, although it knew the means provided for the purpose were unsafe. Under such circumstances, was the owner of the stock to be compelled to take them elsewhere for shipment, or the appellant to refuse employment, because of knowledge of the defective condition of the platform? A very different case would be presented where one contributed to his own injury by carelessness upon his part in the use of the defective platform. He cannot complain where, but for his own neglect in the manner of using it, the injury would not have occurred. In such a case, there is a co-operating cause of injury on his part. Here there is none, but the Railroad Company invites the shipper to ship his stock. It holds itself out as furnishing safe means for the purpose; and, although he makes a prudent and usual use of them, yet after he has been injured it says to him: "There is no liability upon our part, because you knew we were not doing what we professed to the public?" It cannot be heard to rely upon the failure of a duty so important to the public. It is the duty, for instance, of a railroad company to keep its depot lighted at night, that entrance and exit may be safe. Suppose a person desires to take passage at a certain place, and upon reaching the depot he finds that this has not been done. The situation is such that he must enter the depot and take passage, or decline to go, however important his business. He ac cordingly enters; and, while prudently, and as best he can, making his way in the darkness, falls, and is injured by something carelessly placed in the way by the company. Will it be contended that the company could shield itself by saying: "You knew there was no light in the depot, and if you had kept out of there no injury would have resulted?"

If one have notice of a defect in a highway making it dangerous for travel, this does not per se make a careful and usual use of it by him negligence. We do not, of course, mean to hold that one may, by recklessly rushing into danger, or by his own culpable negligence in use of the appliances provided by the railroad company, directly produce the injury, and then hold the company liable; but as he must of necessity use them, or forego travel, or the transportation of his property, he should not be remediless, although he may know of their defective condition, if he is injured when using them for these purposes in a prudent and

the usual manner. Any other rule would leave the public at the mercy of the railroad companies. They, knowing the traveler or ship per, in this day of wonderful advance and improvement, is compelled to use their roads, or forego travel or the shipment of his property, could by their agents inform him of the defective condition of their appliances for travel, and then be exempt from liability for his injury by

reason thereof, although still inviting him to use them, and although he has been injured when doing so in a prudent and usual manner. Public safety, and the proper management of this now almost universal mode of travel and shipment, forbid the adoption of a different. rule from the one we have indicated.

Judgment reversed, and the cause remanded for a new trial consistent with this opinion.

PITTSBURGH

Appt.,

v.

able to Hawks as trustee.

Carbon Companies, Respt.

(....N. Y.....)

That subsequently, and before the comby Hawks was ordered to be wound up and McMillin was appointed receiver therefor, and that McMillin was entitled to receive the money which had been deposited by the Brush Elec

Further facts appear in the opinion.
Mr. C. S. Crosser, for appellant:

(January 14, 1890.)

The original vice of an unlawful purpose tainted every part of the trust contract, includ ing the assignment of the claim against the Brush Electric Light Company. Such claim never in any legal sense became an asset of the trust or trustees.

Bishop, Cont. 469, 471, 473; 3 Am. & Eng. Encyclop. Law, 872; 9 Am. & Eng. Encyclop. Law, 880: Thorne v. Travellers Ins. Co. 80 Pa. 15;

General Term of the Supreme Court, Fifth Department, aflirming a judgment of the Erie Special Term in favor of defendant in an action to determine the ownership of a fund which had been paid into court by the original defendant in the suit. Affirmed.

The action was originally brought against the Brush Electric Light Company, of Buffalo, to recover the contract price of certain electric light carbons which were alleged to have been sold and delivered by plaintiff to that company. The company appeared and represented that a claim was made upon it for the same debt by one Frank C. McMillin, that it admitted the debt to be due and offered to pay the same into court, and moved that McMillin be substituted as defendant in the suit. The court granted this motion and McMillin was substituted as defendant and appeared and made defense.

The court found as facts, inter alia, that prior to March 1, 1887, plaintiff had a contract with the Brush Electric Light Company for supplying to it certain electric light_carbons| from time to time; that on or about March 1, 1887, plaintiff made a contract with Edward C. Hawks relating to the conduct and management of its business, and relating to the performance by him of its existing contracts; that during the period in which the carbons for which this suit was brought were shipped to the Brush Electric Light Company plaintiff was operating its works in accordance with the contract made with Hawks, who sent bills for all

v. King, 44 N. Y. 87; Arnot v. Pittston Coal Co. 68 N. Y. 558; Stanton v. Allen, 5 Denio, 434. There can be no estoppel against asserting the invalidity of the trust contract.

Greenhood, Pub. Pol. Rule 126; Wheeler v. Wheeler, 5 Lans. 355; Langan v. Sankey, 55 Iowa, 52; Snyder v. Willey, 33 Mich. 483; Stevens v. Wood, 127 Mass. 123; 2 Kent, Com. 466; Bredin's App. 92 Pa. 241.

The receiver represents the trust combination, with no better title to this claim than that of a voluntary assignee. His title is derived solely from the trust combination, with all previous equities and iniquities still attached thereto.

Rev. Stat. pt. 3, chap. 8, art. 3, § 68; Curtis v. Leavitt, 15 N. Y. 9; Cutting v. Damarel, S8 N. Y. 410; Honegger v. Wettstein, 94 N.Y. 252; Williams v. Babcock, 25 Barb. 109; McHarg v. Donelly, 27 Barb. 100; Bell v. Shibley, 33 Barb. 610; Van Wagoner v. Paterson Gaslight Co. 23 N. J. L. 283; Symes v. Hughes, L. R. 9 Eq. 475; Greenhood, Pub. Pol. Rules 2, 10, 42; High, Receivers, § 699; Beach, Receivers, §§ 699-706; Story, Eq. Jur. § 831.

The respondent's position is not strengthened by urging the claims of the creditors of the trust, and by relying on their real, or supposed, innocence.

1. The burden was on these creditors of ascertaining the nature of the trust, and the limits of the trustees' authority. Swan v. Produce Bank, 24 Hun, 277.

2. The trust agreement did not by its terms create any copartnership relationship. The creditors dealt directly with, and extended credit to the trustees as principals.

Smith v. Anderson, L. R. 15 Ch. Div. 247; Cary v. Gregory, 6 Jones & S. 127; Austin v. Munro, 47 N. Y. 360; New v. Nicoll, 73 N. Y. 130; Storrs v. Flint, 14 Jones & S. 498.

The appellant's right to recover this fund antedates the trust contract and is clear of all its taint. The respondent, to succeed, must plant himself squarely upon the trust contract and secure the aid of the court to enforce the same. This is beside the purpose of equity. Keene v. Kent, 4 N. Y. S. R. 431; Bishop, Cont. 469; Pom. Eq. Jur. SS 401, 940; Wharton, Cont. ed. 1882, § 349; Steers v. Lashley, 6 T. R. 61; Sykes v. Bendon, L. R. 11 Ch. Div. 170; Armstrong v. Toler, 24 U. S. 11 Wheat. 258 (6 L. ed. 468); Thomson v. Thomson, 7 Ves. Jr. 470; Snell v. Dwight, 120 Mass. 9; Dunham v. Presby, 120 Mass. 285; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173.

courts have refused to allow the parties to defeat such rights by going back to the unlawful agreement, even as between themselves.

See Keene v. Kent, 7 N. Y. S. R. 229; Brooks v. Martin, 69 U. S. 2 Wall. 70 (17 L. ed. 732); Marsh v. Russell, 66 N. Y. 288; Wann v. Kelly, 5 Fed. Rep. 584; W. U. Teleg. Co. v. Union Pac. R. Co. 3 Fed. Rep. 423; New York Cent. Trust Co. v. Ohio Cent. R. Co. 23 Fed. Rep. 306.

Andrews, J., delivered the opinion of the court:

The finding that the contract of March 1, 1887, between the plaintiff and Edward C. Hawks, as trustee for the plaintiff and other carbon companies, was made for unlawful purposes, and was illegal, was not excepted to, and is to be taken an incontrovertible fact on this appeal. The ground of illegality is not expressly stated, but it is clearly to be inferred from the other findings and the opinion of the trial court that the contract was held to be illegal for the reason that it was entered into in furtherance of an unlawful combination between the plaintiff and other carbon compaparties to the combination was to vest in a common trustee the management and control of the business of manufacturing and selling carbons for electric lighting theretofore carried on separately by the companies forming the combination. To this end the several companies were to lease to the trustee their re spective factories, and to operate them under the direction of the trustee, who was to designate the kind of goods to be manufactured, fix the prices at which and the persons to whom they should be sold, purchase all materials and supplies, collect the bills and pay out of the common fund the cost of production, and divide the net proceeds and profits of the business between the several parties to the combination in a ratio fixed by the contracts of the respective companies with the trustee.

Laws 1858, chap. 314; Rules 78, 79, General Rules of Practice; Atty-Gen. v. Guardian Mut. L. Ins. Co. 77 N. Y. 272; Talmage v. Pell, 7 N. Y. 328; Farmers & M. Bank v. Jenks, 7 Met. 592; Honegger v. Wettstein, 15 Jones & S. 125, 94 N. Y. 252; Alexander v. Relfe, 74 Mo. 516; Osgood v. Laytin, 3 Keyes, 521; Osgood v. Ogden, 4 Keyes, 70; Litchfield Bank v. Church, 29 Conn. 150.

The plaintiff cannot take advantage of the illegality of its own acts to defeat the rights of creditors, whether in a suit brought directly by them, or by a receiver as their representative. Broom, Legal Max. pp. 279, 288. See Litchfield Bank v. Church, supra.

Members of a partnership cannot set up, as against a creditor who had dealt with the partnership in good faith, the fact that the partnership was formed for an illegal purpose, in order to defeat their own liability for a just debt.

See 1 Lindley, Partn. Eng. ed. 201, 205; Metcalfe, Cont. 116; Adams v. Creditors, 14 La. 461; Kinsman v. Parkhurst, 59 U. S. 18 How. 293 (15 L. ed. 387).

Treating the contract as an agency, the principal could not set up the illegality of such a contract as against an innocent creditor who had contracted with the agent in good faith, so as to defeat its liability for a just debt.

See Murray v. Vand rbilt, 39 Barb. 140; Wharton, Ag. §§ 474, 542, also §§ 25, 26, 249, 250, 320.

In cases of unlawful agreements, where they have been executed, and new rights have sprung up which do not necessarily involve the enforcement of the unlawful agreement itself,

The plaintiff, when the contract of March 1, 1887, was made, had an outstanding contract to furnish carbons to the Brush Electric Light Company from time to time, and in its contract with the trustee the plaintiff assigned to him all existing contracts, and the trustee assumed their performance.

The sum in controversy in this action has been paid into court by the Brush Electric Light Company, being the purchase price of carbons manufactured and delivered to that Company in April, May and June, 1887. These carbons were manufactured at the plaintiff's factory, but were billed in the name of the trustee, and delivered in performance of the contract between the plaintiff and the Brush Electric Light Company, which the trustee had assumed.

In or about July, 1887, the plaintiff refused to continue any longer in the combination. Thereupon an action was commenced in the Court of Common Pleas for Cuyahoga County, in the State of Ohio, the headquarters of the combination, by some of the members of the combination, against the plaintiff and other members thereof, to dissolve and wind up its affairs, and the proceedings resulted in the appointment of the present defendant as receiver of the property and assets of the trusteeship,