not arrived at loading port by Nov. 15th, 1901." The designated loading port was Ship Island, Miss. The vessel arrived there from Venice and reported for cargo November 12, 1901, three days before the charterer could cancel the charter, pursuant to the provision just quoted. On November 15th the agent of the charterer, having learned that the vessel had not sailed from Venice within 48 hours after Ship Island was designated as the loading port, served notice on the master that the charterer declined to load the vessel "owing to the violation of your charter party." This action was taken under the following language of the charter, which provided that the Italian bark Guilia R. was chartered by the Pitch Pine Lumber Company "for a voyage from Ship Island or Pensacola, charterer's option, to Montevideo, Buenos Ayres or Bahia Blanca, A. R., orders on signing B/L. Loading port to be named before. vessel leaves Venice, but vessel to sail 48 hours after orders are given." Construing this language as requiring the bark to sail from Venice within 48 hours after notice of loading port was given, the District Judge, nevertheless, decided that the stipulation was not a condition precedent, the breach of which warranted the cancellation of the charter. In view of the subsequent provision for canceling the charter if the bark reached Ship Island after November 15th the judge decided that the failure to sail from Venice within 48 hours was the breach of an independent covenant which entitled the charterer to any damages it might have sustained thereby but did not give it the right to refuse the bark. The District Judge undoubtedly felt that the action of the respondent in declining to load the bark after she had crossed the ocean in order to keep her agreement and had arrived well within the stipulated time, ought not to be upheld upon a strained or doubtful construction of the charter and we agree with him in thinking that if the 48-hour provision related to the departure from the port of Venice it must yield to the plain and unmistakable provision regarding the cancellation of the charter. If the negotiations of the parties on this subject had not culminated in an explicit agreement there might be difficulty in sustaining the libelants' position. It seems to us that there can be little doubt as to the soundness of the proposition that the respondent could, if it so desired, cancel the charter if the bark arrived at Ship Island after November 15, 1901, but could not do so if she arrived prior to that date.

It must be conceded that if the foregoing interpretation be adopted the question is not entirely free from doubt; if, however, the agreement be construed to mean that the bark was to sail from the loading port (Ship Island) within 48 hours after receiving orders. to proceed to the port of discharge, all difficulty as to the law is eliminated from the case. It is now contended, and it is asserted that the contention is made for the first time in this court, that the clause in question should be interpreted as follows:

"A voyage from Ship Island or Pensacola, charterer's option, to Montevideo, Buenos Ayres or Bahia Blanca, A. R., orders on signing bill of lading, but vessel to sail 48 hours after orders are given. Loading port to be named before vessel leaves Venice."

Bearing in mind that in construing these contracts the court should be guided by the intention of the parties we are strongly inclined to the opinion that the foregoing is the proper and natural interpretation of language which it must be admitted is inartistic. and somewhat ambiguous. Our reasons for this conclusion may be briefly stated as follows:

First: It is an inaccurate use of language to describe the mere designation of the loading port as "orders." If the parties had intended that the 48-hour provision should apply to the situation at Venice they would have stipulated that the bark should sail "48 hours after notice of loading port is given," or "48 hours after loading port is named." On the other hand, "orders" was a most apt and appropriate word to describe the action of the charterer in directing the master's course after his vessel was loaded with the charterer's property and especially so when the parties had used the word in a precisely similar sense in the paragraph immediately preceding. When they speak of the loading port they used the word "named"; when they speak of the port of discharge they use the word "orders."

Second: Though the agreement was made July 31, 1901, it was not until August 14th that Ship Island was designated as the loading port, indicating that the charterer was not anxious to load the vessel before November. The provision for naming the loading port was manifestly for the benefit of the vessel, otherwise she might have been compelled to touch at Pensacola only to be informed that her cargo was to be received at Ship Island. The charterer was amply secured by other provisions, found in the printed part of the charter, providing that the vessel should "proceed with all possible dispatch from Venice to loading port." The charterer needed no other protection than this, coupled with its right to cancel if the vessel failed to report November 15th.

Third: It was for the interests of both parties that the vessel should have quick dispatch after receiving her cargo. Delay here might result most disastrously to the charterer, but unless the 48hour provision applied to the loading port the charterer had no redress. No other clause of the agreement gives it.

Fourth: The language so often quoted was written in the printed form in place of other language which had been erased. The printed portions so deleted provide for a safe port of discharge "48 hours allowed awaiting orders at Montevideo." In short, the charter as originally printed provided that after the loaded vessel arrived at Montevideo 48 hours should be allowed awaiting orders to proceed to a safe port of discharge. It seems fair to assume that the words "vessel to sail 48 hours after orders are given" were intended as a substitute for the words so erased. Read in the light of what seems to have been the intent of the parties we are of the opinion that the charter did not require the bark to sail from Venice within 48 hours after receiving notice that the charterer had selected Snip Island as her loading port.

The decree is affirmed with interest and costs.

BOWER v. HOLZWORTH et al.

(Circuit Court of Appeals, Eighth Circuit. May 23, 1905.)

No. 2,199.

BANKRUPTCY-JURY TRIAL ON INVOLUNTARY PETITION-REVIEW.

Proceedings on a trial by jury of the issues joined on a petition in involuntary bankruptcy are not subject to review by appeal, but only on writ of error.

Appeal from the District Court of the United States for the Southern District of Iowa.

C. M. Brown (K. E. Willcockson, on the brief), for appellant. C. H. Mackey and D. W. Hamilton, for appellees.

Before VAN DEVANTER and HOOK, Circuit Judges, and LOCHREN, District Judge.

PER CURIAM. Upon the involuntary petition of the appellees the appellant was adjudged a bankrupt, after the issues raised by the petition and answer respecting his insolvency and his commission of an act of bankruptcy had been determined against him by the verdict of a jury upon a trial had according to section 19 of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]. It is sought to have the judgment reviewed by an appeal as in an equity case. The errors assigned relate to rulings made during the course of the trial before the jury. It is settled by the decision of the Supreme Court in Elliott v. Toeppner, 187 U. S. 327, 334, 23 Sup. Ct. 133, 47 L. Ed. 200, that the proceedings upon such a trial, had before a jury, are not subject to review on appeal, but only on writ of error. Upon the authority of that case this appeal must be, and is, dismissed.

FARRELL v. ERIE R. CO.

(Circuit Court of Appeals, Second Circuit. April 6, 1905.)

No. 158.

1. RAILROADS-INJURY OF PERSON AT CROSSING-CONTRIBUTORY NEGLIGENCE. Plaintiff, a boy 16 years old, approached on foot a crossing of double tracks of defendant's railroad over a street. After crossing the street the tracks curved sharply, and took a direction at right angles to their former course. Plaintiff's testimony showed that before going upon the crossing he looked in both directions along the track, which on the side of the curve he could see as far as a tunnel 1,300 feet away. There was no train in view from that direction, but one was approaching from the other on the further track, and he waited until it had passed, and then, looking along the other track and seeing no train, he started to cross, but was struck by a train coming from the opposite direction, and injured. There was thick smoke coming from the train which passed, and settling near the ground, and the train itself as it rounded the curve obstructed the view on the other track, except for perhaps 150 feet. There was also evidence that the train which struck plaintiff was moving at a speed of 15 miles an hour, in violation of a city ordinance, which

prohibited a speed greater than 6 miles. Held, that in view of such evidence, and the noise made by the train which had passed, the question of plaintiff's contributory negligence was one of fact for the jury. 2. SAME.

A person approaching a railroad crossing in a city is not bound to anticipate that an approaching train will proceed at an unlawful or an unusual rate of speed, and is not chargeable with negligence, as matter of law, in attempting to cross, if, in view of the distance at which the track seems to be clear, he would have time to cross before a train going at the usual and lawful speed would reach the crossing.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, § 1074.]

Appeal from the Circuit Court of the United States for the Southern District of New York.

Writ of error by the plaintiff in the court below to review a judgment entered upon a verdict directed by the court in an action brought to recover for injuries received at a highway crossing. The trial judge directed a verdict for the defendant upon the ground that the evidence established contributory negligence on the part of the plaintiff, and refused the request on behalf of the plaintiff to submit that issue to the jury. Error is assigned of that ruling.

J. B. Ker, for appellant.

Chas. MacVeagh, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

WALLACE, Circuit Judge. The question whether the case was one which should have been submitted to the jury upon the issue of the contributory negligence of the plaintiff is the only one which has been argued at the bar.

The evidence upon the trial tended to show the following facts: Near the intersection of Monmouth street and Twelfth street, Jersey City, and a few feet westerly of the westerly line of Monmouth street, two parallel tracks of the defendant's railroad cross Twelfth street at right angles, and curve sharply to the westward, until they join the main lines of the defendant's road, when they run practically due west, and enter a tunnel distant about 1,300 feet from the crossing. Both Twelfth street and Monmouth street, as shown upon the map which was used upon the trial, are narrow streets, being about 30 feet wide. The plaintiff, a lad 16 years of age, was proceeding on foot, on the afternoon of a clear day, along the south side of Twelfth street, going west intending to cross the tracks. After he reached Monmouth street he looked to the left, and saw no train coming, though he could see the tracks unobstructed as far as the tunnel. Then he looked to the right, and saw a short freight train coming on the further track, which was going west towards the tunnel. He stopped and waited until it had passed and had got about 12 feet beyond the crossing. Then he looked again, saw the near track was clear to the westward as he thought for a distance of 100 feet, and started to cross; but as he got on the first track he was struck by a train coming from the westward. Thick smoke was coming from the locomotive of the train going towards the tunnel, and settling near the track; and the train itself while rounding the curve would preclude a person standing on Twelfth

street near the westerly line of Monmouth street from seeing a train coming from the westward on the nearer track more than 150 feet away. The evidence did not distinctly show how far the plaintiff was from the track when he finally looked to see if a train was approaching and started to cross. If he had reached the westerly line of Monmouth street, he would have been about 10 or 12 feet from the track. There was testimony that the train which struck the plaintiff was going at a speed of about 15 miles an hour.

Upon these facts we think the trial judge erred in taking the case from the jury. The testimony of the plaintiff indicates that he was a fairly intelligent lad, and if his narrative was true he approached the crossing without undue haste, and did not attempt to cross the tracks until he had looked, waited until one train had passed, looked again to see if he could cross safely, and discovering, as he supposed, that he could do so, went forward. It is not impossible that the smoke of the locomotive of the freight train obscured his view so that while the train was rounding the curve he could not have seen the approaching train more than 100 feet away. The noise of the freight train sufficiently explains his failure to hear the approach of the other train. If he was on the westerly line of Monmouth street when he made his final start to cross the track, he could have crossed, going leisurely, in about 5 seconds, and probably less. If the train that struck him had been moving at a speed of 6 miles an hour, it would have been about 11 seconds in covering the 100 feet. By one of the ordinances of the city it was unlawful for the defendant to propel its trains across any street within the city limits at a greater speed than 6 miles an hour. The engineer of the locomotive which struck the plaintiff testified that the customary speed of the defendant's trains at that place was at the rate of 5 or 6 miles an hour. If the train was in fact making a speed of 15 miles an hour, it would have traversed the 100 feet in about 42 seconds.

The plaintiff was bound to use ordinary care, which was to be greater or less, according to the circumstances in which he was placed, and the dangers which a person of ordinary prudence would have reason to apprehend. He was not required to anticipate that an approaching train of the defendant would proceed at an unlawful rate of speed, or at an unusual rate of speed, or at a rate of speed dangerous in view of the relative location of the crossing and the curve. If, estimating the distance at which the track seemed to be clear, the time it would take a train to travel that distance proceeding at the usual speed, and the time it would require to cross the track in safety, a person of ordinary prudence would under the same circumstances have considered it safe to cross, the plaintiff was justified in attempting to do so. Unless the jury would not have been warranted in finding that ordinary care would forbid an agile lad to attempt to cross a railway track which he could pass in five seconds, when no train was in sight for a distance which a train proceeding at ordinary speed would cover in twice that time, the question of contributory negligence was not one of law, but one of fact. Irrespective of any arithmetical calculations