On Writ of Error to the Circuit Court of the United States for the Eastern District of Virginia.

C. V. Meredith and M. M. McGuire, for plaintiff in error.

John A. Lamb (H. A. Atkinson and R. T. Lacy, on the brief), for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and McDOWELL, District Judges.

MCDOWELL, District Judge. This was an action at law, brought by the defendant in error, who will be hereafter designated as the "plaintiff," for damages for personal injury, which resulted in a verdict and judgment in behalf of the plaintiff for $2,917.50. The Richmond Locomotive Works, to be hereafter designated as the "defendant," had some months previous to the accident to the plaintiff let to contract the work of tearing down certain parts of its building and erecting others in lieu thereof. The contractor sublet a part of the work to one Wilson, by whom the plaintiff was employed at the time of the accident. Wilson's men had been at work for some weeks, and the plaintiff, who had also been on the work previously, had been engaged for about a week prior to the accident. The work at which the plaintiff was engaged was in tearing down a brick wall of the old boiler house, which ran at right angles to the erecting shop. The drawing opposite shows the partially demolished brick wall which the plaintiff was tearing down, the ladder on which he was standing at the time, which is leaning against the western wall of the erecting shop, and one of the rails on which ran a crane, which was constantly used in the erecting shop. The crane tracks were about 600 feet in length, and some 39 feet apart. The man who operated the crane was in a cage suspended under the bridge or axle of the crane, on the far side of the erecting shop, and nearly under the more distant rail, with his head about 18 inches beneath the level of the rails. The crane was used for hoisting and carrying heavy machinery and materials from place to place in the erecting room.

On the morning of the accident, Cole, foreman of Wilson, the subcontractor, directed the plaintiff, a negro laborer 23 years old, to go up on the ladder and throw off the bricks composing the boiler house wall to be removed. The plaintiff ascended the ladder until he stood on the third round from the top. He then turned so that his face was towards his work, put his left hand over the crane rail, and, stooping forward and towards his right, commenced to pull out and throw down the bricks with his right hand. While he was in this position, the crane, which was moved slowly from the south (right side of drawing), ran over the plaintiff's hand, and injured it and his forearm to such an extent that the arm had to be amputated. The crane operator did not know of the plaintiff's position until after the injury. The plaintiff knew that the crane was frequently and almost constantly moved up and down the erecting room.

There is a conflict of testimony as to whether the ladder was put in the position shown in the drawing by the plaintiff under Cole's direction, or whether it had for some days been standing as shown. There

was some testimony for the plaintiff to the effect that Cole, when directing the plaintiff to tear down the wall, told him that the crane would not be operated. This is denied by Cole. There is no evidence that Cole, if he made this statement, had been authorized to make it by any person representing the defendant, or that this statement, if made, was heard by any one representing the defendant. The contract made by the defendant with the contractor provided that the contractor's work should be so carried on as not to interrupt the work of the defendant. And the defendant's work in the erecting shop was being carried on at

the time of the injury. So far as appears, no employé of the defendant knew of the plaintiff's position of danger. The crane operator had been engaged by the defendant for about ten years, and for three years prior to the accident he had been operating the crane. It was affirmatively shown that he was competent and careful, and that, if there was any cause of complaint against him, it was that he was wont to move the crane too slowly because of his unusual caution. His testimony, which is wholly uncontradicted, is that he looked down the tracks before starting the crane-which had been for some moments standing some 30 feet south of the place of the accident-and saw nothing to indicate that any one was in danger.

Had the learned trial court taken the view of this case that we feel constrained to take, the jury would have been directed to find for the defendant, and we think the court erred in not giving such instruction. In other respects we find the charge given the jury erroneous, in that it was based on the theory that the defendant, after the plaintiff had put himself in a position of danger, could, by the exercise of reasonable care, have discovered his danger and avoided the injury. But to us, even without considering the fact that the plaintiff's negligence continued until the moment of the injury (Gilbert v. Erie R. Co., 97 Fed. 747, 38 C. C. A. 408; Kirtley v. Chicago R. Co. [C. C.] 65 Fed. 386; St. Louis R. Co. v. Shumacher, 152 U. S. 77, 81, 14 Sup. Ct. 479, 38 L. Ed. 361; Rider v. Syracuse R. Co. [N. Y.] 63 N. E. 836, 58 L. R. A. 125; Fonda v. St. Paul R. Co., 71 Minn. 438, 74 N. W. 166, 70 Am. St. Rep. 341; Montgomery v. Lansing R. Co., 103 Mich. 46, 61 N. W. 543, 29 L. R. A. 287), it seems that there was no evidence making this rule applicable. The plaintiff had unnecessarily taken an unusual and extraordinary position. He was standing on the third round of the ladder, with the width of the wall of the erecting shop between him and the rail, leaning towards the partially demolished wall of the boiler house. There was nothing in his position, as viewed from the situation of the crane operator, which would have suggested to the latter that the plaintiff had his hand on the rail. The erecting shop was under roof, and it appears that it was rather dark. The plaintiff is a negro, and his hand therefore would not have attracted the attention of the crane operator. According to his uncontradicted testimony, the crane operator looked along the tracks before starting the crane, and saw nothing to cause him to suspect the danger of the plaintiff. The crane operator was, when he started the crane, about 50 feet distant from the plaintiff's hand. At the very moment of the accident he was nearly 40 feet distant, with his head some 18 inches below the level of the rail. In looking down the tracks to see if the way was clear, if he had seen the plaintiff's head, or his head and shoulders, he would not have been led to suspect that the plaintiff had his hand in the extraordinary position in which he did have it. The back of the plaintiff's head was toward the crane operator. Under these circumstances negligence could not be imputed to the defendant. There was, therefore, no room for the application of the rule of law on which was based the charge to the jury. It follows that it is unnecessary to consider the other assignments of error.

We are of opinion to reverse the judgment below, and remand this cause for proceedings consistent with this opinion. Reversed.

MOULTON v. COBURN et al.

In re GEORGE M. COBURN & CO.

(Circuit Court of Appeals, First Circuit. July 6, 1904.)

No. 521.

1. BANKRUPTCY-INVOLUNTARY PROCEEDINGS WITHDRAWAL OF PETITION FOR LEAVE TO JOIN AS PETITIONER.

A court of bankruptcy is authorized, in its discretion, to permit the withdrawal of a petition filed by a creditor asking leave to join in a petition in bankruptcy which had been filed against the debtor, when no action had been taken thereon, and the right of such creditor to become a petitioner was not free from doubt.

2. SAME-WHO MAY BECOME PETITIONERS-CREDITORS ASSENTING TO ASSIGNMENT.

A creditor who has assented in writing to the terms of a common-law assignment for the benefit of creditors, unless under special circumstances, is not entitled to join in an involuntary petition alleging as the sole act of bankruptcy the making of such assignment; being estopped by his election between his rights under the assignment and those under the bankruptcy law.

3. SAME NUMBER OF CREDITORS.

To entitle less than three creditors to maintain a petition in involuntary bankruptcy, it must appear that there were less than twelve creditors at the date of the filing of the petition.

Appeal from the District Court of the United States for the District of Massachusetts.

For opinion below, see 126 Fed. 218.

Lee M. Friedman (Godfrey Morse, on the brief), for appellant. Charles K. Cobb (William D. Whitmore, Jr., on the brief), for appellees.

Before COLT and I'UTNAM, Circuit Judges, and BROWN, District Judge.

BROWN, District Judge. The original petition in involuntary bankruptcy was filed by a single creditor. It alleged as the sole act of bankruptcy an assignment for the benefit of creditors, and that there were less than twelve creditors. In fact, there were at the date of filing the petition about thirty creditors. An attempt was made to increase the number of petitioners in accordance with section 59d of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3445]). The District Court held that there were but two proper petitioners, and more than twelve creditors, and dismissed the petition. The petitioner, Moulton, now appellant, contends that the dismissal of the petition was erroneous; claiming, first, that there were three or more proper petitioners; second, that at the date of hearing there were less than twelve creditors who could be counted, and therefore that a single petitioner was sufficient. We find no error in the ruling of the District Court that there but two proper petitioners.

After answer setting up the existence of some thirty creditors, the Tripp Giant Leveler Company, a corporation, on September 2, 1903, filed

an intervening petition praying "that it may be allowed to adopt the allegations set forth in the petition in the above-entitled case, and join in said proceedings, and become a petitioning creditor therein." Subsequently, on September 28, 1903, it filed a second petition, asking "that it may be allowed to withdraw its petition to join in the petition against the above-named bankrupts, and become one of the petitioning creditors." This petition was, by order of court, referred to a referee to ascertain facts and report thereon, under rule twelve of general orders in bankruptcy (89 Fed. vii, 32 C. C. A. xvi). On November 13, 1903, the referee reported certain facts, with his conclusion that the first petition of the Tripp Giant Leveler Company was filed "under mistake and misapprehension, as the company had already assented to the assignment in the manner above stated." The District Judge, upon consideration of the facts, held that the joinder in the petition was under a misunderstanding or mistake of fact; that the withdrawal was not necessarily governed by In re Cronin (D. C.) 98 Fed. 584; and, as an exercise of discretion, granted the petition to withdraw.

The appellant contends that the withdrawal of a petitioner should in no way invalidate the bankruptcy proceedings to which he has become a party, and cites In re Bedingfield (D. C.) 96 Fed. 190; In re Cronin (D. C.) 98 Fed. 584.

The present case, however, differs essentially from a case in which one of three original petitioners in involuntary bankruptcy seeks to withdraw, and thereby to impair the rights of his co-petitioners. There had been no express joinder in the original petition, but merely a petition that the Tripp Company be allowed to join, and a withdrawal of this petition before any final action of the court, making it a party to the original petition.

The right of the Tripp Company to become a petitioning creditor was not free from doubt, and was at least a contestable right. Before the filing of its intervening petition, the treasurer of the corporation had authorized Adams to assent to the assignment upon a condition which was complied with, and Adams on August 14, 1903, had signed a document on behalf of the corporation expressing its assent to the assignment. Forgetting or without bearing in mind his previous authorization of Adams, the treasurer authorized the filing of the intervening petition for leave to join in the original petition. Subsequently the corporation decided to adhere to the first action of its treasurer.

The appellant questions the legality and sufficiency of the authorization of Adams, and of the execution of the document expressing the assent of the corporation to the assignment. We do not consider it necessary to consider these questions, for, even were there a defect in the execution of the document, the circumstances were clearly of such a character as to justify the corporation in adhering to and ratifying the action of Adams, and to give the District Court discretion to permit the withdrawal of such an intervening petition as was filed by the corporation.

Fogg, assignee of the Manufacturers Die Company, was clearly not a qualified petitioner, since his assignor was not the real creditor. The Graton & Knight Manufacturing Company, assignor to Atherton, before the bankruptcy proceedings, had assented to the assignment.