based upon time and distance, if it was true that the plaintiff just before he stepped upon the track looked to see if any train was approaching, and did not see one, or if he did see the approaching train, and in that respect testified untruly, but nevertheless supposed that it was far enough away to permit him to cross the track without incurring any substantial risk, the question whether his attempt was one which an ordinarily prudent person would not have made was a question upon which fair-minded men might reasonably differ. Some weight is to be given to the presumption that those who are crossing a track in front of an approaching train, guided by the instinct of self-preservation, will not place themselves in imminent peril of life and limb by making the attempt without allowing a proper margin of safety. Reasonably prudent pedestrians not infrequently cross tracks near which they are standing in front of slowly approaching trains, and sometimes when the train is seen not to be more than 150 feet, or even 100 feet, away; and unless it can be said that to do so is negligent per se, it is for a jury to consider the various circumstances which give character to the particular act and assign it to its proper category. When different inferences fairly may be drawn from the facts, and different minds may be led reasonably to different conclusions upon the evidence, it is error to take the question of negligence from the consideration of the jury.

The evidence upon the trial presented an improbable, but not an impossible, case. It seems improbable, if the boy had looked as he said he did, that he could have failed to see the approaching train. when at a distance of 150 feet; yet if, owing to the smoke, he could not see it until it was within 100 feet, and he looked and did not see it, the accident may have happened substantially as he testifies it did. Although he may have been near enough to the track to cross with apparent safety, nevertheless if it be true, as some of the testimony indicated, that the train was moving at the speed of 15 miles an hour, it is not wholly incredible that it could have overtaken him before he passed over. The judgment is reversed.

GEORGE LAWLEY & SON CORP. v. PARK.

(Circuit Court of Appeals, First Circuit. May 25, 1905.)

No. 581.

1. CONTRACTS-ACTION FOR BREACH-QUESTIONS FOR JURY.

An issue as to whether certain bronze frames used by defendant in the construction of a yacht for plaintiff, and which proved to be brittle and unfit for the use to which they were put, were in compliance with the contract, which required all material to be "the best procurable of its kind in every respect," was properly submitted to the jury where there was evidence that the manufacturers had made and supplied to others a much better quality of bronze, although there was evidence tending to show that the bronze used was the best procurable at the time. 2. SAME-BREACH OF IMPLIED WARRANTY.

One who contracted, in the building of a yacht, to use material the best procurable of its kind, does not fulfill the implied warranty by using

reasonable efforts to procure the best, and it is no defense to an action to recover back the purchase price on the ground of its breach that he ordered the best materials, and used them in good faith in the belief that they were such.

In Error to the Circuit Court of the United States for the District of Massachusetts.

H. Eugene Bolles (Charles H. Tyler and B. Deveraux Barker, on the brief), for plaintiff in error.

Robert S. Gorham (Ropes, Gray & Gorham, on the brief), for defendant in error.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

LOWELL, Circuit Judge. In 1903, the plaintiff in error, hereinafter called the defendant, contracted in writing to build a yacht for the defendant in error, hereinafter called the plaintiff. The materials were to be "the best procurable of their kind in every respect." Certain frames here in controversy were to be of extruded bronze 1% inches by 11⁄2 inches by 7/64 of an inch. About seven weeks after the yacht was launched and paid for, on her passage from New York to Newport, in ordinary weather, and with proper handling, nearly all these frames were broken, so that she was not safe to use. The bronze was found to be so brittle as to be unfit material for the frames of a yacht, having but 3 to 5 per cent. of ductility. The plaintiff sought to rescind the contract, and brought this action to recover back the purchase price. His principal contention at the trial before the jury was that the extruded bronze, of which these frames were made, was not "the best procurable of its kind in every respect," as required by the contract. The defendant asked the trial judge to order a verdict, contending that there was no evidence that the bronze was not the best procurable of its kind. The learned judge refused to take the case from the jury, which awarded the plaintiff the whole price he had paid. The defendant's exception to the learned judge's refusal to direct a verdict is now before us.

The question presented is this: Was there evidence to go to the jury that the bronze was not the best procurable of its kind in every respect? Extruded bronze is a material which, in 1903 and earlier, was made in this country exclusively by the Coe Brass Manufacturing Company. The plaintiff introduced evidence to show that rods and bars made by this company before 1903, being about 14 inches in diameter, showed a ductility of about 20 per cent.; that before 1903 the Herreshoffs had used bars about a quarter of an inch in thickness, having a ductility of at least 15 per cent.; and that the United States had used many tons of this bronze having a ductility of at least 15 per cent. Packard, an expert, testified that the frames in question were very brittle, and that a proper degree of ductility was necessary to constitute extruded bronze of the best quality. The defect in these frames was latent, and was known neither to the plaintiff nor to his architect until after the breakage. Having thus introduced evidence that the bronze of the frames was

unfit for use, and that much better bronze had been made by the Coe Company and supplied to others, the plaintiff made a prima facie case that the bronze was not the best procurable. To meet this case, the defendant made two defenses:

1. He introduced the evidence of Weaver, salesman and manager of the extruded bronze department of the Coe Company. Weaver testified that his company had at the time of the contract but one alloy used for the frames of yachts, and that without taking up the matter and experimenting further he could have given the defendant nothing better than the bronze furnished. He attempted to explain the admitted unfitness of these frames by stating his opinion that the bronze, when extruded into shapes as small as the frames in question, became more brittle by reason of its rapidly cooling surface, which was relatively larger as the frames were made the thinner. He also testified that a series of experiments was made by the Coe Company in 1903 and 1904, resulting in a new alloy, some samples of which, a little larger than the frames here in question, had a ductility of 20 per cent. The defendant thus sought to show that the bronze used in the yacht, though unfit for its purpose, was the best procurable of its kind. Weaver's evidence tended to establish this contention, and, if believed in all respects by the jury, might have established it conclusively. But Weaver was not qualified as an expert, and we cannot say that the jury was bound to accept his theory, or that a verdict founded upon the plaintiff's evidence was unwarranted. There was evidence that the bronze was not the best procurable, and to pass upon conflicting evidence is the duty of a jury.

2. The defendant called Lawley, its manager, who testified that he talked with Weaver before ordering the bronze frames, and that it was understood between them that the bronze was to be the best. It was agreed that all parties concerned acted in good faith, and honestly endeavored to produce a yacht which should be strong and satisfactory in every respect. The defendant contended that Lawley used all reasonable care to obtain from its only manufacturer in this country the best extruded bronze; and that, even if an inferior article was furnished the defendant, yet Lawley's precautions proved that the bronze was the best procurable, the best he could procure, even if it was not the best actually made. But we are of opinon that one who warrants to deliver the best procurable article of a certain kind does not fulfill his warranty by using reasonable care to obtain the article warranted. This suit is not brought in tort to recover for negligence in furnishing a dangerous article, but to enforce a warranty implied from the written contract. If the bronze sold to the defendant and by it employed in the yacht. was, in fact, inferior to the bronze used by the Herreshoffs and the government, inferior to bronze made by the manufacturer before the contract, the defendant cannot successfully defend this action by showing that it ordered the best bronze, contracted for its delivery, and put it into the yacht in the honest belief that the manufacturer had furnished the article contracted for. For these reasons 138 F.-3

we are of opinion that the learned judge was right in submitting the case to the jury, and the defendant's exception must be overruled.

We are also of opinion that the contract here in question was one capable of rescission, and that under the circumstances the plaintiff made a sufficient offer to return the yacht to the defendant. To refer to authorities and evidence on these two points we deem unnecessary.

The judgment of the Circuit Court is affirmed, and the defendant in error recovers costs of appeal.

HAYWARD et al. v. KEY.

(Circuit Court of Appeals, Second Circuit. April 12, 1905.)
No. 183.

1. MASTER AND SERVANT-LIABILITY OF MASTER FOR FOREMAN'S NEGLIGENCENEW YORK STATUTE.

Under the New York employer's liability act of 1902, which establishes the rule for the federal courts sitting within the state in actions for personal injuries to employés, an employer is liable for the negligence of a foreman, whose principal duty is that of superintendence, to the same extent that he would be liable at common law for his own personal negligence.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 371-373, 427-430.]

2. SAME-ACTION for Death of Servant-Questions for Jury.

Plaintiff's intestate, who was employed by defendants, and working on a high scaffolding, was thrown therefrom and killed by the recoil of a pneumatic riveting tool which he was using. There was no recoil when the tool was in proper condition. At noon on the day of the injury deceased had told the foreman that the tool was out of repair, and on his return was told by the foreman that it had been repaired, and was in good condition. There was evidence that it worked properly until the time of the accident. Under the state statute defendants were liable for the negligence of the foreman. Held, that the questions whether or not deceased assumed the risk or was guilty of contributory negligence were properly submitted to the jury.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1068-1132.]

In Error to the Circuit Court of the United States for the Southern District of New York.

Writ of error by the defendant in the court below to review a judgment rendered upon a verdict for the plaintiff.

Ford & Tuttle, for plaintiffs in error.

Joseph Steiner and Henry A. Petersen, for defendant in error. Before WALLACE, TOWNSEND, and COXE, Circuit Judges. PER CURIAM. The action was brought to recover damages accruing to the next of kin in consequence of the death of the plaintiff's intestate, William C. Key, alleged to have been caused by the negligence of the defendants. Key was a mechanic in the employ of the defendants, and while engaged in the course of his duties met his death by being thrown from a high scaffold to the ground

by the recoil of a pneumatic riveter, called a "gun," which he was using in driving rivets. The pneumatic riveter is a powerful tool, making 500 or 600 strokes a minute. When in order, it works without any serious recoil, but when out of order is liable to recoil violently. Key had been using the tool throughout the forenoon, and found it "kicked" very hard. According to some of the testimony, when he stopped work at noon he stated that he was going to get another "gun," and went to the foreman of the defendants (Haskell), and told him that the tool was out of order, and was told by Haskell that he would have it repaired; and when Key returned from his dinner he inquired if the "gun" had been repaired, and was told by Haskell that it had been, and that it was "all right and in good condition." When he resumed work he used the same tool. According to some of the testimony it did not operate properly, but according to other testimony it did until Key applied it to the particular rivet which he was driving when the accident took place. While he was driving that rivet it recoiled with such force as to throw him off the scaffold.

At the close of the evidence the court was requested on behalf of the defendants to direct a verdict in their favor upon the general ground that the plaintiff had not established a cause of action, and upon the further ground that the defendants were not liable for any "negligence or alleged negligence that may have been shown." The request was denied, and the cause was submitted to the jury. No exceptions were taken to the instructions of the court to the jury, and no requests were made for further instructions. Some of the rulings of the trial judge in admitting evidence were excepted to by the defendants, and error was assigned of these rulings; but the assignments are without merit, and do not require detailed consideration. The main contention for the plaintiffs in error, as presented by the brief and argument of counsel, is that upon the evidence the court should have ruled that the deceased was guilty of contributory negligence, and that he assumed the risk of the injuries which he received. The case made upon the trial brought the action within the provisions of the New York "Employer's Liability Act" of 1902. This act, while preserving all the commonlaw liabilities of the master for injuries sustained by the servant through the negligence of the master, extends that liability by providing that the master shall be liable for the negligence "of any superintendent of the employer, or any person acting as such, or whose principal duty is that of superintendent." In Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411, the New York Court of Appeals, in construing this statute, said:

"It is clear that it has given an additional cause of action where it prescribes that the master shall be liable for the negligence of the superintendent or any person acting as such. At common law, while the master was liable for the fault of his alter ego to whom he intrusted the whole management of the work, with the power to employ and discharge servants, he was not liable for the negligence of foremen merely as such."

The language of the statute accords with this interpretation of the court, and it must now be accepted as the rule of decision in the