We need not inquire whether the doctrine of assumption of risk, which, in its general acceptation, applies to cases between employer and employé, and involves the idea of implied contract of assumption, might, under some conditions, be extended to a case in which the injury results from a careless condition of things caused by the negligence of an outside party in respect to an outside business, because there is nothing in the nature of the plaintiff's contract with the telephone company, or in the character of the work, so far as shown by the record, which would warrant the application of the doctrine of assumption of risk against the plaintiff and in favor of the defendant.

We think it a question of due care. So far as the defendant is concerned, it is a question of due care and reasonable circumspection in respect to the oversight of wires known to be dangerous when out of repair in a situation where it is the duty and the right of others to go in the prosecution of their work, and, so far as the plaintiff is concerned, a question of due care in the manner of doing a rightful work in the line of duty, in a situation which he knows necessarily involves some hazard. Knowledge that wires are liable to get out of repair, and when out of repair that they are dangerous to life, is something entering into the question of care as it applies to both parties.

The defendant's second position is that the plaintiff's case is controlled against him by contributory negligence, and that it was so unquestionably careless for a man who knew the liability of insulation to get out of repair, and the resulting danger, to merely look and then voluntarily bring himself into contact with a wire without the safeguard of a safety belt, that contributory negligence should be ruled as a matter of law.

We do not think the negligence so clear as to warrant this. The plaintiff knew that one man had ascended the pole before him; and when he was called upon to ascend the pole and do something in the line of his work, he looked and saw the proximity of the wire to the pole which he was to ascend, and testified that it seemed all right. He may, without thinking much of insulation, have meant by this that he thought he could climb the pole without touching the wire, because he said he went up on the field side, sliding his hands up the pole, and that he felt a sway of the pole as though the men had given a jerk and let up quick, and that was the last he remembered. If it were clear that he had seen the break in the insulation, or that he had climbed the pole and got in contact with the wire, without any intervening cause like the swaying of the pole, it would be quite a different thing. There is no evidence that he saw the lack of insulation. It is only argued that he ought to have seen it. This being so, and the unforeseen swaying of the pole being the probable cause of the contact, it reasonably, we think, became a question for the jury whether, under all the circumstances the plaintiff exercised the care of a prudent man in attempting to do what he did.

The defendant's third point is that, if the question of the plaintiff's care is one for the jury, it was not submitted under proper instructions, and upon this point we are compelled to hold with the defendant.

It is quite apparent, from the correct statement of the principle by

153 FEDERAL REPORTER.

the learned judge upon the motion to set aside the verdict, that he had in mind the rule under which questions of care in respect to a given situation are submitted to a jury; but we think he failed in his instructions to convey to the jury a full understanding of the rule which should have governed them in their deliberations in respect to the proper standard of care and in respect to its application to the plaintiff. The effect of the instructions, we think, was to lead the jury to determine the question of the plaintiff's due care by reference to men of the character of the plaintiff and with reference to his own situation and observation, rather than by reference to the standard afforded by the man of ordinary prudence. Thus the learned judge said:

"I think you should take, gentlemen, this particular pole and form a judgment. How suspicious a place was it? How dangerous a place would it appear to the ordinary observation of a man of this character? How suspicious would it appear to a man of that kind? Was he fairly warned by the mere look of that place that there was danger that the insulation might be off, or that he was called upon to inspect for lack of insulation? sulation is a bare spot on the wire-a thing of such common occurrence, genIs the lack of intlemen, on poles of this description, that men should always invariably inspect it and always make a close inspection?"

The last words quoted, we think, led the jury to understand the real issue in the case to be, did due care require the plaintiff to make a "close inspection" of the pole? A misleading standard of due care was thus suggested, which, so far as appears by the record, was not sufficiently corrected by other instructions.

Under the instructions, we think the jury would naturally turn the case in their own minds upon the situation and the particular man in question, and upon the question whether such a situation always requires close inspection. We are unable to find anything in the instructions which would convey to the jury the idea that the plaintiff's care should be determined with reference to the question as to what men of ordinary care and prudence would have done under the circumstances. The plaintiff's negligence, if there were negligence, would consist in the failure to use such care as a person of common prudence similarly situated would exercise. The question of ordinary caution in carrying on dangerous work, or the question of ordinary care and prudence, must be determined with reference to what men of ordinary prudencewould do under the circumstances. Similarly situated and under like circumstances, of course, includes the idea of men of similar knowledge and experience; and ordinary care means such care as such men would ordinarily exercise in such a situation as the plaintiff was in.

The reason for this rule, quite likely, is found in the idea that greater security resides in an impersonal standard than in the best attempt of jurors to decide upon a particular personal aspect. In the one view, the jurors are bound to hold the plaintiff's rights subject to the standard of care which men of ordinary prudence would exercise, while in the other the jury would be relieved from that standard, and feel at liberty to say, "Well, he probably thought it was all right, or perhaps he did not think," or, "It cannot be reasonable that men should always and invariably make a close inspection." In the one aspect there is a standard; in the other there is no standard for measuring the care.

Of course, it stands to reason, under the rule of ordinary care, that

the jury must consider the entire situation. The knowledge of the dangerous elements involved, the duty to enter the field of hazard, where the dangers cannot always be seen, where the care of a reasonable man may or may not discover the danger of contact if things remain as he sees them, and the probability that danger would have been averted but for the intervention of some unforeseen force which precipitates the danger, are all things to be considered. Care cannot be measured in degrees applicable to a particular plaintiff in a particular situation of hazard. Due care in a particular situation can only be ascertained upon inquiry as to what men of ordinary prudence would have done in a situation like that in which the plaintiff was involved. This idea was not clearly brought to the attention of the jury.

The judgment of the Circuit Court is reversed, and this case is remanded to that court, with directions to set aside the verdict and for further proceedings not inconsistent with this opinion; and the plaintiff in error recovers its cost of appeal.

BROWN et al. v. WILMORE COAL CO.

(Circuit Court of Appeals, Third Circuit.

April 22, 1907.)

No. 14.

MINES AND MINERALS-GRANT OF MINING RIGHTS-FORFEITURE BY ABANDONMENT.

Defendant, for a nominal consideration expressed therein, obtained a large number of contracts, denominated "leases," from owners of land, conveying to him the coal and other minerals under such land, with the right to mine the same for 99 years and of renewal in perpetuity. By the terms of the contracts he was to render an account to the grantors and pay royalty at specified rates whenever any coal or other mineral was mined. Held, that such contracts imposed obligations upon defendant, as well as vesting him with rights, a mining enterprise being clearly contemplated thereby, and that where he did not in fact intend to prosecute such enterprise, and took no steps toward it, and paid no royalties, through a period of more than 20 years, during which coal was extensively mined in the vicinity, his rights were lost by abandonment, without regard to his actual intent to retain the same, and an owner in possession under subsequent conveyances from the same grantors was entitled to maintain a suit in equity to cancel the contracts as clouds upon its title. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, 189, 190.]

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

For opinion below, see 147 Fed. 931.

H. Snowden Marshall, for appellants.

D. L. Krebs and John G. Johnson, for appellee.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

DALLAS, Circuit Judge. The Wilmore Coal Company exhibited its bill for relief from a cloud upon title against J. Willcox Brown and the New Amsterdam Coal Company in a court of common pleas of the state of Pennsylvania. The defendants having been duly served,

the suit, at their instance, was removed into the Circuit Court of the United States for the Western District of Pennsylvania, where, after hearing upon pleadings and proofs, a decree was entered in favor of the complainant, and the defendants appealed.

The general facts have been clearly set forth by the learned judge of the court below (147 Fed. 931), and we adopt his statement of them, as follows:

"In the years 1878 and 1880 the defendant J. Willcox Brown, a resident of Baltimore, Md., secured a large number of mining leases, aggregating about 16,000 acres, in different tracts, of various sizes, in Somerset county, Pa., as well as a like number in adjoining counties of Indiana and Cambria, 19 of which, of the Somerset lot, covering some 2.400 acres, are involved in the present suit. These leases were indentures under seal, and severally undertook, for the consideration in some cases of $5, and in some cases of $10, to grant, bargain, and sell to the said J. Willcox Brown, his heirs, executors, administrators, and assigns, 'all the iron ore, coal, cement, and fire clay, and all other minerals of every kind,' under the different tracts described, 'including the privilege of boring any number of wells and taking therefrom, by such means as are or may be most practicable, petroleum, carbon, or coal oil; also any salt water that may be found on the premises and manufacturing the same into salt,' together with the full and exclusive right, liberty, and privilege of mining, taking, and carrying away the said iron ore and other minerals, and of using such stones, earth, and water as might be necessary or required for conducting the mining operations. A few acres were reserved around buildings, and enough coal for the grantor's own use, and in some cases such as he might sell to his neighbors. The leases were to run for 99 years; the grantors covenanting at the end of that time to execute other leases of like tenor, for a similar term, renewable forever. In consideration whereof, it was agreed by the grantee that on the expiration of every three months, whenever any ore or other minerals were mined, quarried, or otherwise reduced to possession and removed from the premises, he would render to the grantor, his heirs, executors, and assigns, a true and correct account thereof; for every ton of coal, cement, fire clay, or other minerals than iron, five cents; and for every 100 barrels of petroleum or coal oil, and every 100 bushels of salt, 5 per cent. of the net profits. The leases were duly acknowledged and put on record in the office for recording of deeds in Somerset county, Pa., in July, 1880. A copy of one, as a type of all, although they differ in some minor particulars, is reproduced in the margin.1

"The section where these leases were located was entirely undeveloped at that time, except for farming, and was discredited as coal or mineral territory by the state geological survey. There was no railroad into it, and in view of this it was provided, in somewhat varying terms, in all but four of the leases here in controversy, that unless one was built within five years they should be null and void. As to those where no such provision appears it is charged in the bill that there was a verbal undertaking to the same effect by the defendant's agent at the time of securing them. But this is denied in the answer, and the evidence to sustain it is unsatisfactory, and they must therefore be taken as they stand. A railroad being a recognized necessity, however, the defendant Brown, in addition to his leases, busied himself with getting rights of way, some 64 of which he secured, 7 of these being from parties whose leases are involved in this suit. The railroad which he had in contemplation was to start at Johnstown, Pa., on the main line of the Pennsylvania Railroad, and run up Stony creek, and Paint or Shade creek, to the old Rockingham furnace at the head of the latter, and thence southeasterly, by other waters, in the direction of Hagerstown, Md.; and it was in general conformity with this that the rights of way were taken. No such railroad, however, was ever built. But in 1880 the Baltimore & Ohio Railroad constructed a branch from their line at Rockwood, Pa., northerly about 40 miles, through the center of Somerset county, to Johnstown, which followed down Stony creek

1 See note at end of case.

a part of the way, by the mouth of Shade and Paint; and when it was being laid out the defendant Brown put his rights of way at the service of the Baltimore & Ohio engineers, although none of them were made use of. The building of this road, however, did not lead to the mineral development of that section, which came about a number of years later in quite another way. In 1892 to 1894 Robert H. Sayre and others began taking up coal lands in this territory, getting together about 18,000 acres, including much of that which is now in controversy, which they subsequently conveyed to the Wilmore Coal Company, which they had organized; and a year or two afterwards they sold out their interests in the company to Mr. Edward J. Berwind, president of the Berwind-White Coal Mining Company, who thereby secured their holdings, which he increased later to some 35,000 or 40,000 acres. Both Mr. Sayre and his associates, and Mr. Berwind after him, bought outright, at so much an acre, the coal which they purchased; that already leased to the defendant Brown being conveyed to them in fee by the original lessors or those who had succeeded to the title, in most instances without regard to the leases, but in some cases subject to them, the rights of the lessors being assigned, and in all with actual knowledge of them. Having got together this extended acreage, Mr. Berwind, endeavored to induce the Pennsylvania Railroad to run in a branch, but they declined to do so; and he was compelled to undertake it individually, which he did at an expense of about $500,000. This and the development of the different properties for mining, which followed, involving about $1,000,000 more, extended over two or three years, and not until some time in 1897, therefore, was any mining done; but since that time it has been actively pursued, and an extensive business built up, the operations being conducted by the Berwind-White Coal Mining Company, under the Wilmore Coal Company, to whom a royalty of 10 cents a ton is paid.

"In securing the lease in suit and others in that region, Mr. Brown did not expect to do any mining personally, and he has not, either by himself or others, nor has he paid royalties at any time on any of them; his purpose being to sell the leases to others or to transfer them to some company in which he had an interest, which would operate them. He sold some of his holdings in the southern part of the county in this way, and he made several attempts to interest parties in the others, including the New York Central Railroad people, and the Baltimore & Ohio. Learning of Mr. Berwind's purchases, he finally offered them to him, but without success; these negotiations ending in the spring of 1895, after which no others were undertaken. In 1892 certain of the leases were assessed and sold for taxes. but were redeemed by Mr. Brown, who paid some $1,500 to do so. They were sold again in 1896, but this he resisted, and succeeded in having the sale set aside by the court. Learning in 1902 that the Berwind-White Company were mining on certain of the lands which he had leased, he sent an engineer to investigate the matter, receiving from him a detailed and extended report, which confirmed the information, upon which he took counsel, with the idea of legal action. Some delay was experienced, however, with regard to this, the one-quarter interest, which he had assigned to the agent who secured the leases, being outstanding in the hands of various parties. But these having been got into line, a corporation was organized-the New Amsterdam Coal Company, defendantto which all interests were transferred in exchange for stock; and in 1904 actions were brought by that company against the Berwind-White Coal Mining Company in the United States Circuit Court for the Southern District of New York for damages for taking the coal from six of the different tracts in controversy, following which, in May, 1904, the present bill was filed."

The conclusion reached by the learned judge was that the leases. held by the defendants were invalid, and that, as they constituted a serious cloud upon the title of the plaintiff company, it was entitled to a decree requiring that they "be delivered up and canceled, and a minute of it made in the office where they are on record, limited always, however, to the coal, and not the other minerals, as to which 153 F.-10