federal courts sitting in this state in actions like the present that the employer is to be deemed liable for the negligence of a foremai whose principal duty is that of superintendence to the same extent as he would be liable at common law for the negligent acts of an alter ego. The defendants were therefore liable for the negligence of the foreman, Haskell, to the same extent as they would have been for their own personal negligence.

It is entirely plain that if the deceased, finding the tool with which he had been provided by his employers out of order and in a condition dangerous to use, had brought the fact to the notice of one of the defendants, and had received from him a promise that it would be put in proper order, and before using it again had been told by him that it had been put in order in the meantime, he would have been justified in relying upon the faith of that assurance and in using the tool in the belief that it was in proper condition, until it appeared that such was not the fact. Under such circumstances the servant cannot be presumed to have assented to assume a risk of danger incident to the use of an unsafe tool, or to have been guilty of negligence in using it, unless it appears that he discerned the defect, or that the defect was so apparent that it ought to have been manifest to him before the accident took place. The evidence amply justified the trial judge in leaving the question of the negligence of the defendants to the jury.

The question of the contributory negligence of the deceased was not specifically raised by the request in behalf of the defendants for the direction of a verdict. It was, however, submitted to the jury by the trial judge in his instructions, and, as has been mentioned, his instructions were not in any respect challenged by exceptions or requests for further instructions. If the jury believed the witness Beck, they were justified in finding that no defect was manifest in the tool to the deceased until almost at the moment when the accident occurred. In view of the evidence it is quite unnecessary to consider the effect of the statutory provision in the employer's liability act, which declares that "the question whether the employé understood and assumed the risk of such injury, or was guilty of contributory negligence by his continuance in the same place and course of employment with knowledge of the risk of injury, shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence." We find no error in the record.

The judgment is affirmed, with costs.

MINAHAN v. GRAND TRUNK WESTERN RY. CO.

(Circuit Court of Appeals, Sixth Circuit. June 15, 1905.)

No. 1,360.

1. FEDERAL COURTS-BILL OF EXCEPTIONS-SETTLEMENT TIME.

A bill of exceptions in a case tried in a federal court may be settled at any time during the term, or thereafter until the end of the term during which judgment is rendered.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, §§ 49-51.]

2. SAME-EXTENSION OF TIME.

An order extending the time to settle a bill of exceptions, made during the pendency of the term at which the cause was tried, to a date later than the end of that term, of itself operated to prolong the control of the court over the cause, and justified the settlement of the bill at a later date.

3. TRIAL-PEREMPTORY INSTRUCTIONS-JOINT REQUESTS.

Where, in an action in which the facts were not conceded, plaintiff interrupted the court as it was passing on a motion to direct a verdict for the defendant, and asked leave to file certain requests to charge the jury, one of which was a request for a peremptory instruction for plaintiff, and the court permitted such requests to be filed, and assured counsel that he should have the benefit of them, such practice did not amount to a submission of the issues of fact to the court so that plaintiff was precluded from objecting to an adverse finding thereon. 4. CARRIERS-INJURIES TO PASSENGERS-PRESUMPTION OF NEGLIGENCE.

Injuries to a passenger by derailment of the car in which he was riding, while passing over a switch, created a presumption of negligence on the part of the carrier.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1288.] 5. TRIAL-DIRECTION OF VERDICT-CONFLICTING EVIDENCE.

A trial judge in a federal court is not entitled, on his own view of the evidence, to direct a verdict, where there is a positive conflict in the evidence on a material issue.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 342, 343.] 6. SAME QUESTION FOR JURY.

In an action for injuries to a passenger by derailment of the car in which he was riding, as it passed over a defective switch, conflicting evidence as to the cause of the defect held to present a question for the jury. In Error to the Circuit Court of the United States for the Eastern District of Michigan.

Dickinson, Stevenson, Cullen, Warren & Butzel (Maybury, Lucking, Emmons & Helfman, of counsel), for plaintiff in error. H. Geer, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS, Circuit Judge. The case brought up by this writ of error is an action instituted in the court below by the plaintiff in error to recover damages for personal injuries sustained by him in consequence, as he alleges, of the negligence of the defendant while he was a passenger on a car of defendant's passenger train, whereby the car was thrown from its track against an engine standing on

a side track at or near Millets Station, a few miles west of Lansing, Mich., on the night of April 5, 1902. The defendant pleaded the general issue, which, under the Michigan statute relating to pleadings in actions at law, is equivalent to a plea of not guilty. The issue was tried before a jury, and at the conclusion of the evidence adduced by the respective parties the court, at the request of the defendant, instructed the jury to return a verdict for the defendant. No question arises upon the pleadings. There are 53 rulings of the court assigned as errors. But as we are of opinion that the court erred in taking the case from the jury by its peremptory instruction, we shall pass all other questions, and, after attending to certain objections of the defendant in error, proceed to a statement of the reasons which lead to our conclusion upon the propriety of the general instruction given by the court. To do this, we must needs make a more particular statement of the case.

The plaintiff had taken a ticket at South Bend, Ind., for a passage over the defendant's road to Detroit. There were seven cars in front of the one on which the plaintiff was riding, and one, a sleeper, behind. The train left South Bend at 11:30 p. m., and at 3:30 in the morning was passing through Millets Station at a speed of 45 miles an hour. Some time before that a long freight train drawn by two engines, coming from the east, had passed off the main track, and was standing on a side track on the south side of the main track and parallel therewith, awaiting the passage of the passenger train, No. 6, on which the plaintiff was riding. There was a switch at the west end of the side track, and some distance west of the station house, leading into the main track, and the switch was adjusted so as to leave the main track clear for the passage through of the passenger train. This switch was of parallel rails, which at the movable end were thin, running to a point, and lying against the side of the rail when closed. The engine of the passenger train and seven cars passed over the switch safely. The forward truck of the plaintiff's car also kept the main track, but the switch apparently opened before the rear truck reached it, and the rear end of the car was carried off to the right, and the car thrown with great violence against the engine standing in the front end of the freight train. One of the passengers in the car was killed; several were seriously injured, among them the plaintiff, who was so grievously hurt that he is crippled for life. The cause of the accident was the dislocation of the switch bar at the joint where its two parts are united, whereby the part (which for convenience is called here part 2) carrying at their proper distance apart the front or movable ends of the switch rails was left unattached to the part (called part 1) coming from the switch stand, and the forward end. of the switch was left floating, i. e., without any lateral fastening. Apparently, also, the concussion and jar of the passenger train had to do with the dislocation of the switch bars and the lateral movement of the fore end of the switch whereby it became opened. Until the afternoon of the day before the accident the switch stand had stood upon the south side of the tracks, but on that afternoon it was moved over to the north side of the tracks to make way for the

removal of the station house to the former site of the switch stand. And in transferring the switch stand to the north side it became necessary to detach part 2 of the switch bar from the switch rails and reverse its position, end for end, and again securing it to the rails of the switch. Part 2 was also detached from part 1 at the joint between them. Part 1 was carried over with the switch stand; the two long ties on the projection of which the stand rested were slid under the rails to the north, to form the projection for the stand there. The stand was relocated, parts 1 and 2 connected up, and the switch made to operate. This was finished at the close of the day's work. We have said that parts 1 and 2 were "connected up." But as the controversy is centered at this point, it is necessary to describe in detail the mode of this connection. This end of part 1 is flat and rounded at the extremity, near which a perpendicular hole is made in such wise that a loop is formed around the pin to be inserted in the hole, which loop is of a nearly even thickness around the sides and fore end of the bar. On the connecting end of part 2 a pin is secured perpendicularly, which enters the hole in the end of part 1. Then, in order to hold the end of part 1 down on the pin of part 2, a clip is riveted upon part 2 further back than the pin, is carried up the thickness of the end of part 1, and then carried parallel to part 2 part way over the rim or loop on the end of part 1. When the parts are formed in this manner, the only way of detaching them is by bending the free end of the clip upward and backward far enough to make space for lifting the loop off the pin. Some of the witnesses testified that this was the form of the parts of this switch bar. When these parts of the bar were first seen after the accident, the clip was thus turned up out of its normal place. Another form of making the parts of the bar is to carry out a projection, or tongue, on the end of part 1 beyond the pinhole. Then the clip on part 2 is made shorter at the free end so as to rest on the tongue only. In this form the parts may be readily disengaged by turning them at right angles to each other, thus carrying the tongue from under the clip. This is the form in which some other of the witnesses testify this switch bar was made. If this was so, there was no need of meddling with the clip, if the sectionman understood his business. But he says he was required to work expeditiously in order to get the switch in order for the passage of trains, and he had not much familiarity with switches. He had two men to help him, but they belonged to another branch of the service. He testified that after the accident he tried to bend the clip back to its place by hammering it with a fish plate, and, not succeeding completely with this, the superintendent of the tracks who had come to the place, hammered it back to place with an iron maul. The bar was then put in its proper place, and used two days after.

During the course of the trial the defendant produced before the court and jury the parts of a switch bar which some of its witnesses testified was the identical switch bar in question which had been taken out two days after the accident and preserved for testimony. Part 1 of this switch bar had a projection on the end where it con

nected with part 2. Several witnesses for the plaintiff, who examined the bar on the morning after the accident to discover the cause of it, testified that it was not the same bar, and two professors of engineering and metallurgy from the University of Michigan testified that the clip bore no signs of having been hammered back to place, as it would have done if it had been the original bar. We cannot further prolong this statement of the evidence.

Two preliminary questions are raised by counsel for defendant which it is urged should first be settled before the merits are considered:

First. It is contended that from lapse of time after the trial the court had lost its authority to settle the bill of exceptions, and that it is therefore a mere nullity. The verdict was rendered June 30, 1903. The term then pending expired on the first Tuesday of November following. No judgment was rendered during that term. But on October 19, 1903, the court ordered that the time for settling a bill of exceptions should be extended until January 2, 1904. By successive orders the time was further extended until the time when the bill was settled, July 18, 1904, and thereupon the court entered judgment on the verdict for defendant. Meantime Mr. Meddaugh, the attorney of record for defendant, had, on December 20th, died, and the defendant had not appointed another. On April 20th counsel for plaintiff served a proposed bill of exceptions on Geer & Williams, who had managed and tried the cause as counsel for defendant. They made no objection to the service on account of Mr. Meddaugh's death, but took no action with reference to the settlement of the bill. On June 4th the plaintiff gave notice to the defendant to appoint a new attorney, as provided by a Michigan statute. This notice was ignored by defendant, and on the 8th of July the court made an order which, after reciting the notice and that no appearance had been entered for defendant, directed the defendant to show cause on the 11th of that month why the bill of exceptions which had been served on Geer & Williams should not be settled. On that day Geer & Williams and F. E. Rankin "appearing specially," as the record states, and, on an affidavit of Mr. Rankin stating the death of the attorney of record and that the extensions of time for settling a bill were made ex parte, moved that the order to show cause be dismissed. The motion was denied, and, on request of counsel for defendant, the time for settling the bill was extended one week, at the end of which time it was settled, as before stated. The contention for defendant is that the time wherein a bill of exceptions could be settled expired at the end of the term during which the cause was tried. But this is not a valid objection. By the lapse of the term without the rendition of a judgment, the cause remained open and in all things subject to the power of the court. Until the judgment was entered, the court had power to extend the time for settling a bill of exceptions, and, if the reasons for it were sufficient, it would be not only proper, but due to the party that it should be done. It is true that it has sometimes been said in judicial opinions that the bill must be settled during the term at which the cause was tried. But doubtless