THE META. It is sufficient to refer to the case of Cæsar v. Capell, 83 Fed. 403, to the judgment of the court upon the effect of the filing of the charter with the secretary of state and the abstract thereof on August 11, 1893, subsequently to the making of the contract, and prior to the We there held that a passage of the curative act of May 10, 1895. compliance with the statute prior to the act of 1895 was, in itself, a sufficient filing, which removed whatever infirmity there was in the contract; and therefore it might be enforced by the courts without regard to the act of 1895 subsequently passed. It was there said: "The infirmity which existed before that time was that the courts of Tennessee, state and federal, if you please, would not enforce a contract made in disobedience of the statute; but whenever that disobedience was removed, and the parties complied with the conditions, there was no longer any substantial reason why the courts should not enforce it. Any reason that might be assigned for not enforcing it would be neither within the mischiefs to be remedied by the statute nor within the enforcement of any policy declared by it, but purely and entirely sentimental; the sentiment being that the contract, having been originally made in disrespect of the statute, should be forever disfavored by the courts and repelled from their precincts, until the legislature had granted a statutory pardon. We think it will be found that courts do not proceed upon any such theory unless the infirmity inheres in the vicious, immoral, or criminal nature of the act itself." This still seems to me quite a substantial answer to the defense that has been set up in this suit. The result is that the plaintiff is entitled to a decree for the collection of its debt and the foreclosure of its mortgage, and the usual decree for that purpose will be drawn Decree accordingly. and entered. THE META. (District Court, E. D. New York. June 21, 1898.) NEGLIGENCE-PERSONAL INJURIES-PRESUMPTIONS. In a libel in admiralty to recover for personal injuries, where the evidence is such as to leave the circumstances and cause of the injury so uncertain that the court can give no logical reason for determining the issue in libelant's favor, the presumption that the person charged with the tort is not guilty must be maintained. This was a libel in rem by Thomas Hanson against the steam tug Meta to recover damages for personal injuries. Foley & Wray, for libelant. Carpenter & Park, for claimant. THOMAS, District Judge. The libelant, the master of the barge Kaiser, lying between piers 18 and 19, East river, New York, with her bow towards the bulkhead, was on May 1, 1893, as he claims, injured by the tug Meta. The Kaiser was housed along her full length, excepting a short space on the bow and stern. There was a rail or string piece, about six inches wide, on the outside of the house, around the vessel, and about even with her deck. A large ship was lying alongside the dock on the upper side of the slip, with her stern near the end of the pier, occupying the dock for nearly its whole length; and against this ship the Kaiser was lying. On the lower side of the slip were one or more vessels, and among them the scow Middlesex, which was attempting to get out of the slip, and in this attempt swung one end up against the side of the Kaiser, while the other end was lying against a vessel at the lower side of the slip. The steam tug Meta, passing along the East river, was called by the libelant to tow the Kaiser out of the slip, and take her to her destination. The tug came alongside of the port quarter of the barge as she lay in the slip, and made her towing line fast to a cleat on the Kaiser's port quarter. This cleat was about 11 feet from the Kaiser's stern, and the towing line passed around the corner of the Pennsylvania scow, there being about 15 feet between the cleat and the tugboat's niggerhead, to which the line was made fast. Thereupon the tug started to back out, pulling the Kaiser from the slip, but shortly a loose and projecting guard iron on the side of the Kaiser's port rail struck the corner of the Middlesex, preventing, for the moment, any further operation. Thereupon the tug stopped, slackened its line, and the tug's stem was brought up to within three feet of the Kaiser's side. The libelant claims that thereupon he left the stern of the Kaiser, where he had been standing, while the tug was pulling, and went out on the guard rail to disengage the corner of the scow from the side of the barge; that when he reached this point he held on to the hand rail along the top of the house with his right hand, having his back towards the tug, and with his left hand pushed on the scow, in an attempt to swing her back, and allow the Kaiser to pass by her; that while so engaged, and without any warning to him, the tugboat pushed her bow in between the scow and the barge in such a way as to shove the scow away from the Kaiser's side, and at the same time struck the libelant on the right foot, either with the niggerhead of the tug or the fender on the tug, in such a way as to press his ankle against the side of the Kaiser's house, and thereby fracture the bone in his right leg near the joint. That the libelant's leg was broken at this time is beyond doubt, but the burden is upon him to establish that it was broken in substantially the manner described by him, by the fault of the tug. Although there is corroborative evidence that the libelant was engaged in somewhat the manner described by him, yet no one observed the alleged collision from which the injury is claimed to have arisen. On the part of the tug it is claimed that she came forward and pressed her stem against the side of the barge, but that the libelant was not in the vicinity of contact, and that she did not force her stem between the barge and the Middlesex in the way claimed by the libelant; and her evidence is quite as credible as that of the libelant on this issue. It must be remembered that the libelant has the burden of proof, and the object of such proof is to carry conviction to the mind of the court that the right of one person has been invaded by the fault of another. Such a conviction does not result in the present case. While there is no question of an injury, there is decided doubt as to the manner of its happening, and such doubt is by no means favorable to the libelant. Where the evidence is left in such condition that the court can give no logical reason for determining the issue in favor of the libelant, it is just that the presumption that the person charged with tort is not guilty should be maintained. It must be confessed that the explanation given as to the manner in which the tug would naturally detach the barge from the Middlesex, as presented by the libelant's advocate, seems the more plausible, although the captain of the tug strenuously asserts that such a course was not necessary, and was not employed, in the present instance. Did the question turn upon which method was the more suitable to loose the barge, there would be no hesitation on the part of the court in determining in favor of the libelant; but the quality and strength of the evidence as to what was actually done are at least as favorable to the claimant as the libelant, and, in view of the burden that rests upon the libelant to make definite his right to recover, it is considered that the decree should be in favor of the claimant. Let such a decree be entered, with costs to the claimant. WEISS V. BETHLEHEM IRON CO. (Circuit Court of Appeals, Third Circuit. 1. TRIAL-MISLEADING INSTRUCTIONS. No. 7. June 13, 1898.) Instructions which, taken as a whole, are calculated to mislead the jury as to the character of the evidence necessary to prove the issue on one side, are erroneous. 2. SAME-FAILURE TO SUBMIT MATERIAL EVIDENCE. Reversible error exists if the general effect of a charge tends to withdraw from the consideration of the jury material evidence, or fails to present with sufficient distinctness a material fact which may have a controlling effect. 8. SAME. It is error for the court to submit the evidence and theory of one party prominently and fully to the jury, and not call their attention to the main points of the opposite party's case. 4 MASTER ANd Servant-PRIVATE RAILWAY--EMPLOYE CROSSING TRACK. The rule requiring a traveler on a highway to stop, look, and listen before crossing a railroad track, is not the criterion by which to determine the degree of care required by an employé about to cross a private railway operated as part of his employer's rolling-mill plant. In such case the employer is bound not to expose its servant, conducting its business, to unnecessary peril against which it might have guarded with reasonable diligence; and the servant has a right to assume that his employer will not subject him to needless danger. The servant is therefore bound only to observe reasonable care to avoid danger which is obvious, or which is known to him, or of which he might have acquired knowledge by the exercise of proper attention. Dallas, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Geo. Demming and M. Hampton Todd, for plaintiff in error. Before ACHESON and DALLAS, Circuit Judges, and BRADFORD, District Judge. ACHESON, Circuit Judge. This is an action brought by John Weiss against the Bethlehem Iron Company to recover damages for bodily injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The plaintiff went into the employment of the defendant company at its steel works on the evening of April 27, 1896. He worked at night from 6 o'clock in the evening to 6 o'clock in the morning, and his duties were to wheel fire brick and clay in a wheel barrow to a place in the defendant's mill, where new furnaces were in course of erection, and to wheel therefrom old fire brick, and dump them at a refuse pile in the defendant's adjoining mold yard. While engaged in this latter work, shortly after 9 o'clock on the night of April 30, 1896,-the fourth night of his employment,-the plaintiff was struck by a moving car which crossed his pathway, and was badly maimed, under the cir cumstances and in the manner about to be related. In wheeling away the old fire brick in his barrow, the plaintiff pursued, as he was directed to do, a wheelbarrow runway which passed through an opening in the wall of the mill out into the mold yard, and proceeded through the yard to a right angle of the wall of the mill, and thence, turning to the left on a line parallel with the wall, and a few feet distant therefrom, to the refuse pile. The last-mentioned part of this wheelbarrow runway at one point crossed a narrow-gauge railway track, 2 feet wide, upon which ran a "dinkey engine" and its "buggies" (a small locomotive and small cars), used in transporting molds from and into the mill. In coming out of the mill into the mold yard, this dinkey engine and its cars emerged through a doorway in the wall, which doorway was 11 feet, less 4 inches, wide. The distance from the outside of the wall to the middle of the wheelbarrow runway crossing was 7 feet. Immediately inside the doorway, within the mill, the railway track made a sharp curve, so that a person standing in the middle of the wheelbarrow crossing and looking into the mill through the doorway could see along the railway track only the distance of 19 feet. Therefore, if the head of the engine were on the track inside the doorway, and 12 feet distant therefrom, it would be invisible to a person at the wheelbarrow crossing under all circumstances. The dinkey engine was 19 feet long, and the length of one of its buggies or cars was 11 feet. In coming out of the mill through the doorway, the engine sometimes pulled a car, and sometimes pushed a car ahead. Its ordinary rate of speed was from four to six miles an hour. Its usual signal before it emerged outside was its whistle, sounded a short distance-about 25 feet-inside the mill as it came around the curve already mentioned towards the doorway. Usually, however, there were three dinkey engines in constant use in the mill at the same time, moving upon several narrow-gauge railway tracks laid in various directions through the mill; and these three engines, it was testified, were giving signal whistles every few minutes all day and all night. A disinterested witness (Julien), speaking of these moving dinkey engines, said: "They always whis tle; they are always going; never stop." It also appeared that there were several stationary engines in the mill near this locomotive doorway, whose whistles were sounding from time to time, and that other loud noises at that place were constantly made by the Bessemer blowers and otherwise. The plaintiff was 31 years of age. He was a German, who had only been in this country a few months before he went into the defendant's service. He had not previously worked. in such an establishment, and had never been in the defendant's works before his hiring. There was evidence tending to show that it was a rule at the defendant's works for the foreman to warn new men in regard to the danger from locomotives, but that no such warning was given to the plaintiff. The defendant's general foreman, Charles G. Barnes, who hired the plaintiff, testified: "As a rule, I generally caution the men about the tracks to be crossed, and the locomotive coming out on the tracks; but I don't know whether I told him [plaintiff] or not. I know I told the foreman of the bottom makers to tell him about it; to take him out and show him the tracks." It was not shown that any one had given such caution to the plaintiff. To the contrary, speaking of the dinkey engine which came out of the doorway into the mold yard and crossed the wheelbarrow runway, the plaintiff testified, "No one told me anything about that locomotive." The plaintiff testified that during each of the three nights he had worked before the night on which he was hurt he had wheeled six loads of old fire brick to the refuse pile, and, counting both his goings and returns, had thus crossed the railway track 12 times each of these three nights. He had wheeled, it seems, three loads on the fourth night before the trip on which the accident occurred. Thus, as he stated, he had crossed the track with his wheelbarrow altogether 42 times, computing both his going and returning. The plaintiff testified that only on one occasion had he seen the locomotive come out of the doorway into the mold yard, and this on the first or second night of his service; and that on that occasion a man came to the doorway, looked out, and beckoned with his hand for the engine to come on, and that this man came out, and the engine followed him. No part of this testimony was contradicted. In one particular it was corroborated, as we shall more fully see hereafter. On the occasion when the plaintiff was run down, the locomotive, it would seem, was moving at its usual speed, and blew its usual signal whistle inside the mill at the customary place, but no other precaution was observed. The engine was pushing a car ahead. The car was loaded with molds, which, it was testified, would show a "cherry red" in the dark. There was no light on the car, nor was any person on it. The engineer, speaking of the plaintiff, testified, "I couldn't see him; there were molds on the top of the buggy." Presumably, then, the plaintiff could not see the engineer or the head of the engine. In the mold yard there was an electric arc light perhaps 150 feet from the crossing. As to the effectiveness of this light at the place of the accident there was some conflict of evidence. With reference to the accident the plaintiff testified in substance as follows: That as he approached near to the railway track, and before starting to cross it, he listened and looked, and he heard nothing and saw nothing; that he then went straight ahead, without stopping, and shoved his wheelbarrow over the track; that he himself had |