And for a more particular assignment of errors, the plaintiff in error says:

First. It does not appear from the special finding of facts by the circuit court that the Township of Van Buren, or the County Court of Jackson County in its behalf, made any contract of subscription to the capital stock of the Pleasant Hill Division of the Lexington, Chillicothe and Gulf Railroad Company, or the Lexington, Lake and Gulf Railroad Company, or any other company; nor was there in fact or law any subscription or contract of subscription by said Van Buren Township, or the County Court of Jackson County in its behalf, to the capital stock of any company; and the court therefore erred in rendering judgment for the defendant in error on the special finding of facts.

Second. It appears from the special finding of facts by the circuit court that neither the Pleasant Hill Division of the Lexington, Chillicothe and Gulf Railroad, nor the Lexington, Chillicothe and Gulf Railroad Company, nor the Lexington, Lake and Gulf Railroad Company ever located or built, or had any power or authority under their charters to locate or build, a railroad in compliance with the terms and conditions of the petition or proposition voted on by the voters of Van Buren Township, in this, that said petition and proposition called for a railroad to commence at the Town of Chillicothe, which is in the second tier of counties north of the Missouri River, and none of said companies had any power or authority to build a railroad north of the Missouri River. Therefore the County Court of Jackson County could not, in behalf of Van Buren Township, make any valid sub scription to the capital stock of either of said companies; and the court, for this reason, also erred in rendering judgment for the defendant in error upon the special finding of facts.

Messrs. C. O. Tichenor and Edward P. Gates, for plaintiff in error:

There was no subscription, or contract of subscription, to the stock of the Pleasant Hill Company.

Bates Co. v. Winters, 112 U. S. 325 (28: 744); Bates Co. v. Winters, 97 U. S. 83 (24: 933); Aspinwall v. Daviess Co. 63 U. S. 22 How. 364 (16: 296); Buffalo & J. R. Co. v. Falconer, 103 U. S. 821 (26: 471); State v. Garroutte, 67 Mo. 453; Weil v. Greene Co. 69 Mo. 284-5; Carlisle v. Saginaw Valley & St. L. R. Co. 27 Mich. 315; Sewall v. Eastern R. Co,9 Cush.12; Gray v. Portland Bank, 3 Mass. 364; Parker v. Northern Cent. Mich. R. Co. 33 Mich. 23; Hopper v. Covington, 10 Biss. 488, 118 U. S. 148 (30: 190);

Hannibal v. Fauntleroy, 105 U. S. 408 (26: 1103); Harshman v. Knox Co. 122 U. S. 306 (30: 1152); Cowdrey v. Caneadea, 16 Fed. Rep. Wilson v. Salamanca, 99 U. S. 504 (25: 331); 532; Gilson v. Dayton 123 U. S. 59 (31.74); Scotland Co. v. Thomas, 94 U. S. 691 (24: 220); Marsh v. Fulton Co. 77 U. S. 10 Wall. 676 (19: Daviess Co. v. Dickinson, 117 U. S. 657 (29: 1040); Dixon Co. v. Field, 111 U. S. 83 (28: 360);

1026).

The following cases show that the bonds in question were made and delivered without authority because of the failure and inability of the company to comply with the condition of the proposition voted on by the taxpayers:

Concord v. Portsmouth Sav. Bank, 92 U. S. 625 (23: 628); Buffalo & J. R. Co. v. Falconer, 103 U. S. 821 (26: 471); Chicago, B. & Q. R. Co. v. Aurora, 99 Ill. 205; Thomas v. Lansing, 14 Fed. Rep. 618; Mellen v. Lansing, 11 Fed. Rep. 829; 20 Blatchf. 278; Virginia & T. R. Co. v. Lyon Co. 6 Nev. 68; State v. Daviess Co. Ct. 64 Mo. 30; Wagner v. Meety, 69 Mo. 150; State v. Minneapolis, 32 Minn. 501; Memphis, K. & C.R. Co. v. Thompson, 24 Kan. 170; Lawson v. Schnel len, 33 Wis. 288; Portland & O. C. R. Co. v. Hartford, 58 Maine, 23; Aurora v. West, 22 Ind. 89; Foote v. Mount Pleasant, 1 McCrary, 101; Cowdrey v. Caneadea, 16 Fed. Rep. 532.

If the bonds are void for want of authority to issue them, the levy and collection of taxes and payment of interest on them for a time by the county court cannot make them valid.

Katzenberger v. Aberdeen, 121 U. S. 172 (30 911); Leslie v. Urbana, 8 Biss. 435 (affirmed in supreme court); Thomas v. Lansing, 14 Fed. Rep. 618; Lewis v. Shreveport 108 U. S. 282 (27: 729); Marsh v. Fulton Co. 77 U. S. 10 Wall. 676 (19:1040); State v. Daviess Co. Ct. 64 Mo. 30. Mr. J. B. Henderson, for defendant in error:

Where the constituent company has express authority to consolidate with some other desig. nated company, the subscription and bonds may be given to either the original or the consolidated company.

Washburn v. Cass Co. 8 Dill. 251; Harter Turp. v. Kernochan, 103 U. S. 562 (26: 411); Me nasha v. Hazard, 102 U. S. 95 (26: 85); Scotland Co. v. Thomas, 94 U. S.682 (24: 219); Wilson v. Salamanca, 99 U. S. 499 (25: 330); Taylor v. Ypsilanti, 105 U. S. 60 (26: 1008).

In the pending case there was an actual subscription of the stock to the constituent company before consolidation.

Nugent v. Putnam Co. 86 U. S. 19 Wall. 241 (22: 83); Cass Co. v. Gillett, 100 U. S. 585 (25: 585); Warren Co. v. Marcy, 97 U.S. 107 (24: 981); Moultrie Co. v. Rockingham Sav. Bank, 92 U. S. 631 (23: 631); Clarke Co. Ct. v. Paris W. &. K. R. Turnpike Co. 11 B. Mon. 143; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 175; Lo gansport v. Blakemore, 17 Ind. 318; Sacramento v. Kirk, 7 Cal. 419.

Under the express statute law of Missouri and the repeated decisions of its courts, the act of Tilton Davis, the attorney and agent of the company, in declaring, as a matter of record, the company's assent to and approval of the order of subscription, is binding on the company even as between the original parties.

Preston v. Mo. & P. Lead Co. 51 Mo. 43; Lungstrass v. German Ins. Co. 57 Mo. 107. See Mer

chants Nat. Bank v. State Nat. Bank, 77 U.S. 10 Wall. 644 (19: 1018); State v. Kupferle, 44 Mo. 154; Kitchen v. Cape Girardeau & S. L. R. Co. 59 Mo. 514.

64

66

The words "powers," rights," privileges," ," and "immunities," had been defined and construed by the Supreme Court of Missouri. Under that construction the power to subscribe by a municipality is a "right" or "privilege" of the original company, which passes by virtue of consolidation to the new company.

Hannibal & St. J. R. Co. v. Marion Co. 36 Mo. 294; New Buffalo Twp. v. Cambria Iron Co. 105 U. S. 73 (26: 1024); Wilson v. Salamanca, 99 U. S. 499 (25: 330); Tipton Co. v. Rogers Locomotive & Mach. Works, 103 U. S. 533 (26: 344); Schuyler Co. v. Thomas, 98 U. S. 169 (25: 88); Scotland Co. v. Thomas, 94 U. S. 682 (24: 219); Harter Twp. v. Kernochan, 103 U. S. 562 (26: 411).

The township is estopped from asserting the invalidity of the bonds involved in this case.

Smith v. Clark Co. 54 Mo. 58; Ranney v. Baeder, 50 Mo. 600; Johnson Co. v. January, 94 U. S. 202 (24: 110); Jordan v. Cass Co. 3 Dill. 245; Reardon v. St. Louis Co. 36 Mo. 560; Steines v. Franklin Co. 48 Mo. 167, 188.

Is it possible that any principle of honest dealing can be invoked to avoid these securities? Jordan v. Cass Co. 3 Dill. 185, 245; Moultrie Co. v. Rockingham Sav. Bank, 92 U. S. 631 (23: 631); Oregon v. Jennings, 119 U. S. 74 (30: 323); East Lincoln v. Davenport, 94 U. S. 801 (24: 822); Nugent v. Putnam Co. 86 U. S. 19 Wall. 241 (22: 83); Tipton Co. v. Rogers Locomotive & Mach. Works, 103 U. S. 538 (26: 346); Harter Trp. v. Kernochan, 103 U. S. 562 (26:411); Walnut v. Wade, 103 U. S. 683 (26: 526); Marcy ▼. Oswego, 92 U. S. 637 (23:748).

Judgment affirmed with costs and interest, by reason of a divided court.

This suit was begun in the Circuit Court of the United States, Eastern District of Arkansas. The cause of action alleged in the complaint was the injury and death of the plaintiff's intestate caused by the negligence of defendant's servants in the particulars set forth in the declaration. The defenses set up in the answer were: (1) a denial of negligence on the part of the defendant or its agents; and (2) an averment that the injury was caused by the negligence of the plaintiff's intestate. The court below, after the evidence was in, instructed the jury to bring in a verdict for the defendant.

The case is brought to this court on a writ of error. The alleged errors are, the refusal by the court below to give to the jury certain instructions which the plaintiff requested it to give, and the giving of the instruction that the plaintiff had failed to make out a case for the jury to pass upon, and directing the jury to render a verdict for the defendant.

The plaintiff's intestate, Bauer, was a car inspector in the employ of the St. Louis, Iron Mountain and Southern Railway Company, and his place of work was the railroad yard of that company in Texarkana, where he was at the time he was killed. The defendant com. pany used that yard and the round-house therein in common with the St. Louis, Iron Mountain and Southern Railroad Company. The plaintiff's intestate, Bauer, was run over and killed in that yard by a locomotive belonging to and operated by the defendant company. J. C. Atkinson, the engineer who was in charge of the defendant's locomotive at the time, testified:

"This engine had been taken out of the de fendant's round-house that morning to the south end of the yard to take a train out to Texas, but the purpose of taking the trains out was abandoned and the engine ordered back, when the accident happened. The way we were going the tender was ahead and first struck him."

Willis McDoniel, a witness for the plaintiff, testified:

"I saw Bauer when he stepped on the track ahead of the engine, coming towards me or in my direction. He was about the length of the tender ahead of the engine when he stepped on the track, coming in my direction, with his back to the engine. He came from the east side. I 'hollered' at him and tried to make

pany.

In a suit against the above named railroad company to recover for the death of plaintiff's intestate, caused by the negligence of the company and its servants, the court below, after the evidence was in, instructed the jury to bring in a verdict for the defendant and the judgment on the verdict is affirmed by reason of a divided court.

[No. 136.] Argued Dec. 19, 1888. Decided Jan. 7, 1889.

N ERROR to the Circuit Court of the United

to review a judgment on a verdict for the defendant directed by the Court in an action to recover for the death of the plaintiff's intestate caused by defendant's negligence. Affirmed by reason of a divided court. 181 U. S.

U. S., Book 88.

him to look out, as I saw he was in danger, but he did not seem to notice it. He did not seem to know that the engine was behind him. After he got on the track he walked forty or fifty feet before the engine struck him. I called to him all the time but he did not seem to hear me. from him when the engine struck him." I was from thirty to forty steps

Messrs. Sol. F. Clark and Sam. W. Williams, for plaintiff in error: Negligence by the defendant being established, contributory negligence is always a are any palliating circumstances whatever.

Filer v. N. Y. Cent. R. Co. 49 N. Y. 47; Greenleaf v. Ill. Cent. R. Co. 29 Iowa, 14; Herrick v. Sullivan, 120 Mass. 576. And this is always to be solved according to 209

the circumstances attendant upon the transaction.

Pa. Canal Co. v. Bentley, 66 Pa. 30; Haight v. N. Y. Cent. R. Co. 7 Lans. 11; Jenkins v. Little Miami R. Co. 2 Disney (Ohio), 49; Newhouse v. Miller, 35 Ind. 463; 6 Wait, Act. & Def. 584, 596 and cases there cited; Hoye v. Chicago & N. W. R. Co. 62 Wis. 666; Kaples v. Orth, 61 Wis. 531; Mark v. St. Paul, M. & M. R. Co. 32 Minn. 208; Townley v. Chicago, M. & St. P. R. Co. 53 Wis. 626; Johnson v. Chicago & N. W. R. Co. 49 Wis. 529; Ireland v. Oswego, H.

Dublin, W. & W. R. Co. v. Slattery, L. R. 8 App. Cas. 1166.

Judgment affirmed with costs, by reason of a divided court.

THE CONTINENTAL INSURANCE COM- [432] PANY OF NEW YORK, Piff. in Err.,

v.

DAVID WRIGHT.

DELPHIA, Plff. in Err.

v.

Negligence is a conclusion of fact to be drawn by the jury, under proper instructions from the court. It is always so where the facts, or rather the conclusion, is fairly debatable or rests in doubt.

Roll v. Northern Cent. R. Co. 15 Hun, 496; Steele v. Iowa Cent. R. Co. 43 Iowa, 109; Farley v. Chicago, R. I. & P. R. Co. 56 Iowa, 337; Chicago, R. I. & P. R. Co. v. Dignan, 56 Ill. 487; Schultz v. Chicago & N. W. R. Co. 44 Wis. 638; Burns v. Chicago, M. & St. P. R. Co. 69 Iowa, 450; Hunter v. Wanamaker (Pa.), 2 Cent. Rep. 70; Thompson v. N. Y. Cent. & H. R. R. Co. 13 Cent. Rep. 240, 110 N. Y. 636; Blaiser v. N. Y., L. E. & W. R. Co. 13 Cent. Rep. 231, 110 N. Y. 638; Baltimore & P. R. Co. v. Jones, 95 U. S. 439 (24:506).

Messrs. John F. Dillon and W. S. Pierce, for defendant in error:

The court did not err in directing a verdict for the defendant.

The rule is well established that when the evidence given at the trial, with all the inferences that the jury may reasonably draw from it, is insufficient to support a verdict for the plaintiff, then the court ought to nonsuit the plaintiff or direct a verdict for the defendant. Pleasants v. Fant, 89 U. S. 22 Wall. 121 (22:782); Randall v. Balt. & O. R. Co. 109 U. S. 482 (27:1005); Baylis v. Travellers Ins. Co. 113 U. S. 320 (28:990); Bowditch v. Boston, 101 U. 8. 16, 18 (25:980, 981); Anderson Co. v. Beal, 113 U. S. 227, 241 (28:966, 971); Littlefield v. Internal Imp. Fund, 117 U. S. 419 (29:930); North Pa. R. Co. v. Commercial Bank, 123 U. 8. 733 (31:288).

The law is settled in England to the same effect.

Giblin v. McMullen, L. R. 2 Pr. C. 335; Wakelin v. London & S. W. R. Co. L. R. 12 App. Cas. 41; Metropolitan R. Co. v. Jackson, L. R. 3 App. Cas. 193; Davey v. London & S. W. R. Co. L. R. 11 Q. B. Div. 213; S. C. on appeal, L. R. 12 Q. B. Div. 70; Ryder v. Wombwell, L. R. 4 Exch. 32.

The evidence given at the trial, with all the inferences that a jury might reasonably draw from it, was insufficient to support a verdict for the plaintiff.

Ellis v. Great Western R. Co. L. R. 9 C. P. 557; Culhane v. N. Y. Cent. & H. R. R. Co. 60 N. Y. 133, 137.

DAVID WRIGHT.

(See S. C. Reporter's ed 432, 435.) Policies of fire insurance-liability upon.

The judgments in these actions in favor of plaintiff

below-for loss by fire of his hotel building insured by the companies above named, affirmed by reason of a divided court. [Nos. 139, 140.]

Argued Dec. 19, 1888.

Decided Jan. 7, 1889.

IN ERROR to the Circuit Court of the United States for the Southern District of Illinois, to review judgments in actions brought by the defendant in error, David Wright, upon policies of insurance issued by the above named companies against loss by fire of a hotel building, in favor of David Wright, the plaintiff below, for the amount of the loss.

Statement from brief for plaintiff in error.

The actions in the above stated cases were brought in the Circuit Court of Greene County, State of Illinois, upon two policies of insurance issued by the defendant companies. The first policy was in the Continental Insurance Company, was issued at Las Vegas, New Mexico, and covered $5,000 on "two-story adobe and wood-stuccoed shingle-roof hotel building, to be occupied for hotel purposes," from July 11, 1881, to July 11, 1882. The policy was dated July 11, 1881.

The conditions of this policy provided that the policy should be void "if in said premises there be kept gunpowder," etc.

The second policy was in the Fire Association of Philadelphia, and was concurrent with that in the Continental. Under the sixth condition, it was provided that the policy should be void "if any of the following named articles, or compounds containing any of them, be kept, stored, or used in or on the premises herein described, any custom or usage of trade or manufacture to the contrary notwithstanding; gunpowder," etc.

This policy was also issued at Las Vegas, New Mexico, on July 11, 1881.

The property covered by these policies was destroyed by fire on January 19, 1882, more than six months after they were issued.

The defendant companies failing to pay, aotions were brought therein in the Circuit Court of Greene County, State of Illinois. The cases were removed to the Circuit Court of the United States for the Southern District of Illi