defect, or if it was so plainly observable that he could have seen it by the exercise of ordinary prudence, and if he appreciated that it was dangerous, he assumed the risk of it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 584.]

3. SAME CONTRIBUTORY NEGLIGENCE.

The servant's opportunity to know of the defect, which was not obvious or readily observable, was not conclusive evidence of his negligence. The court rightly charged that it was the servant's duty to use that kind of care for his own safety that an ordinarily prudent man, under similar circumstances with the plaintiff's experience, would use, and that if he failed to exercise this care and that failure directly contributed to his injury, he could not recover.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 674, 708.]

(Syllabus by the Court.)

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

W. J. Barrette (Henderson, Pierce & Critchlow, on the brief), for plaintiff in error.

Thomas Marioneaux (O. W. Powers, on the brief), for defendant in

error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge. As the plaintiff below was using a power punch of his employer to punch some holes in a piece of galvanized iron, something struck one of his eyes and put it out. He sued his employer, the American Smelting & Refining Company, the defendant below, for negligence, in that, among other things, it failed to provide the machine with threads in the chuck head that would hold the punch point tightly in place, and in that it failed to furnish a set screw which would hold the die securely in place so that in the operation of the machine the punch would surely strike the hole in the die true. The defendant denied that it was negligent, and averred that the plaintiff knew and assumed the risk of operating the machine. There was a verdict and judgment for the plaintiff.

The specifications of error are that the court refused to instruct the jury to return a verdict for the defendant, that it refused to instruct them that it was the plaintiff's duty to observe whether the machine. was in a reasonably fair condition for use, and, if it was not, he either assumed the risk of his use of it or was negligent in using it, and in that it refused to instruct them that if the plaintiff, knowing or having the opportunity of knowing the condition of the machine, was of the opinion that it was safe, and used it, he could not recover. There was substantial evidence of these facts: The plaintiff was an experienced boilermaker's helper, and he was directed by his superior to punch out a hole in a piece of galvanized iron. The method to be pursued was to punch out some small holes around the inner circumference of a circle marked on the iron. There were two power punches, the smaller of which was used when the larger was in operation. The plaintiff was

competent to operate the machine and to do the work thus assigned him. The larger punch was in use, and he proceeded to the smaller one and punched several holes when, as he was punching another, something hit his eye and destroyed it. No foreign substance was found in the socket of the eye. The die of the machine was about 21⁄2 inches in diameter. It rested in a depression provided for it in a block, and had a hole in it with which the punch engaged when in operation. The punch and the die were tempered steel, and a collision between the punch and the solid portion of the die was dangerous to the operator. A set screw had been provided which passed through the side of the block and into the die, and which, when in proper condition, held the die rigidly in place in the block. When this set screw was broken or failed to engage both block and die, the latter would sometimes be drawn up out of its place, and there was danger that it would become displaced in that way so that the punch would not strike the hole in the die true, but would collide with the side of it. This set screw had been broken for a month or two, and it did not engage the die or hold it in place. Its condition was not obvious or readily observable. Immediately after the accident it was discovered that a small piece had been broken off of the end of the punch and out of the side of the hole in the die. When the plaintiff went to the machine to punch out the iron, the punch struck the hole in the die true, and he did not change or adjust any part of it. Particles sometimes fly off of galvanized iron while holes are being punched in it, strike operators and draw the blood, but no witness testified that he ever knew of a serious injury from that source. If one hole is punched out of galvanized iron and an attempt is made to punch another by the side of it, so that one side of the punch strikes the iron and the other falls into the hole in the die without obstruction, the metal sheet will force the punch to one side and cause it to collide with the steel of the die; but an experienced operator would not proceed in that way, and there was no evidence that the plaintiff did. There was evidence of other facts, but none that modifies the logical and legal effect of the facts which have been recited.

It was the duty of the employer to exercise ordinary care to furnish reasonably safe machinery, and to use ordinary care to maintain it in a reasonably safe condition of repair, and its failure to do so was negligence which, if causal, was actionable. The broken set screw, the absence of any effective means to hold the die securely in place for more than a month before the accident, the danger therefrom, the broken point of the punch and side of the hole after the accident, and the other facts to which reference has been made, constituted substantial evidence that the defendant was negligent in the inspection and repair of the machine, and that this negligence caused the injury. The evidence that it might have been caused by flying particles from the galvanized iron or by punching out the side of a hole so that one side of the punch met with no resistance was much less persuasive and insufficient to bring the case within the rule that when an injury may have been the effect of one of two or more causes the jury may not speculate on the cause. The natural and rational inference from the evidence was that

the injury was caused by the broken set screw and by the negligence of the defendant in failing to inspect and renew it. The risk of the loose die was not one of the ordinary risks of the employment. The plaintiff testified that he did not know that the set screw was broken or that the die was loose, and there was no evidence to the contrary. Its condition was not readily observable. It was inserted in the side of the block, and the break in it and its incapability of holding the die tightly in place were not obvious. The evidence, therefore, did not conclusively show that the plaintiff knew, or that a person of ordinary prudence by the exercise of reasonable diligence and care in his situation would have known, that the screw was broken or the die loose, and it was not the duty of the court to instruct the jury that he assumed the risk of this defect, or that he was guilty of contributory negligence in his use of the machine. The court rightly refused to instruct the jury to return a verdict for the defendant.

The refusal by the court of the two other requests to charge the jury present a single question. In each request counsel asked the court. to charge the jury that the plaintiff could not recover if the plaintiff knew or had the opportunity of knowing or of observing the defective condition of the die. The requested instruction is sound and right in cases in which the defect is obvious or readily observable. In such cases a servant cannot fail to see a defect which is plainly observable, or to observe that which is obvious, and then recover because he failed, and if he knows or has the opportunity to know it and appreciates the risk from it he cannot recover. But this rule is inapplicable to this case because the defect was not readily observable. The punch struck the die true. The die was in its place. It appeared to be secure. The break of the set screw and the consequent looseness of the die which made it dangerous were not apparent. They could have been discovered by the plaintiff only by searching out the screw in the side of the block and trying it. The duty to make this search was not cast upon the plaintiff. The charge of the court upon this subject was: "If the plaintiff knew of the particular defect in this punch, if you find it actually caused the injury, and appreciated that it was dangerous, or if you believe it was so plainly observable that he could have observed it by the use of ordinary prudence, then he assumed that risk and he cannot complain that he was injured by it. Besides that, * the plaintiff was required to use just that kind of care for his own safety that an ordinarily prudent man, under similar circumstances, with the plaintiff's experience would use. If he failed to use that kind of care and the injury would have been averted by the use of it, he was guilty of contributory negligence, and he cannot recover." The charge was right, and the court properly refused to give the instructions requested because they were not applicable to the facts of this case.

* * *

* *

There was no error in the trial, and the judgment is affirmed. Texas & Pacific Ry. v. Archibald, 170 U. S. 665, 673, 18 Sup. Ct. 777, 780, 42 L. Ed. 1188.

(157 Fed. 73.)

CITIZENS' SAVINGS & TRUST CO. v. BELLEVILLE & S. I. R. CO. (Circuit Court of Appeals, Seventh Circuit. October 1, 1907.)

No. 1,358.

1. EQUITY-RIGHT TO RELIEF-LACHES.

A delay of more than 10 years in bringing suit, and beyond the time limited by statute for bringing an action at law, constitutes such laches, prima facie, as will bar relief in equity, unless the delay was excusable under the facts alleged.

2. SAME.

Defendant railroad company issued stock to a county, receiving in payment bonds of the county which it sold but which were afterward adjudged void. The stock was also afterward canceled at suit of a stockholder. Subsequently complainant, which was a holder of certain of the bonds, brought suit against defendant, and obtained a decree adjudging that defendant held the stock issued on account of complainant's bonds in trust for its benefit, and it was then issued to complainant. Prior to such suit. and pending the suit for cancellation of the county's stock, defendant declared and paid a dividend on its other stock, but purposely omitted such stock upon which it denied any liability. In the suit of complainant to compel the issuance to it of stock, it made no claim for such dividend, but more than 10 years after the same had been declared made demand therefor and brought a second suit in equity for its recovery. Held, that prima facie such suit was barred by laches, and that the delay was not excused by general averments in the bill of want of knowledge of the dividend of due diligence and concealment by defendant, without the allegation of any facts to support such general averments.

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

This appeal is from a decree which dismisses for want of equity a bill filed by Citizens' Savings & Trust Company, as complainant, against the appellee railroad company, upon demurrer to the bill. The suit is for recovery of alleged dividends declared by the appellee upon its stock, whereof 400 shares were held by it in trust for and equitably the property of the appellant, as adjudicated in a prior suit between the parties. The facts averred in the bill in reference to the stock transactions are substantially the same which are stated, in connection with the opinion of this court, in the above-mentioned prior litigation, reported as Citizens' Savings & Loan Ass'n et al. v. Belleville & S. I. R. Co., 117 Fed. 109, 54 C. C. A. 495. In reference to the dividends claimed, the averments are in substance: That "on or before the day of 1896," 4,170 shares of common stock had been issued by the appellee, inclusive of the above-mentioned 400 shares transferred to the appellant under the prior decree, and "on said day of, 1896," a dividend was declared by the directors of 19 per cent. upon the common stock, and actually paid upon 3,170 shares; that the dividend was not paid upon the appellant's 400 shares, and payment thereof was demanded and refused on July 28, 1905; that the trust in favor of the appellant existed during the years 1896 and 1897, but it was not notified of such declaration of dividend; that the appellee (railroad company) "concealed the same"; and that your orator exercised reasonable diligence, but did not learn of same "until the day of July, 1905."

This bill was filed March 14, 1906. Nine several grounds for demurrer are stated, namely: (1) The remedy, if any exists under the allegations, is complete at law, and jurisdiction in equity does not appear; (2) the dividend, as alleged, was payable before complainant became a stockholder; (3) Perry county is a necessary party, and (4) was the stockholder entitled to the dividend sued for, if any one was entitled thereto; (5) the alleged cause of action did not accrue within five years, and is barred by limitation, and (6) did not 84 C.C.A.-37

accrue within 10 years limited by statute; (7) laches appears in delay of suit with no facts stated to excuse the delay; (8) the prior decree averred in the bill is res judicata; and (9) full performance thereof appears on the part of defendant.

J. M. Blayney, for appellant.

Blewtt Lee, for appellee.

Before BAKER and SEAMAN, Circuit Judges, and SANBORN, District Judge.

SEAMAN, Circuit Judge (after stating the facts as above). The Citizens' Savings & Trust Company, appellant, filed the bill in question to recover dividends upon 400 shares of stock in the appellee railroad company; ownership of such stock having been awarded the appellant, under its former corporate name, in a prior decree between the parties, under mandate from this court. Citizens' Savings & Loan Ass'n v. Belleville & S. I. R. Co., 117 Fed. 109, 54 C. C. A. 495. The decision referred to settled the relation of each to the shares of stock through the original void transactions of Perry county in subscription therefor and issue of bonds in payment, sale of the bonds to the appellant, and use of the proceeds by the appellee for its exclusive benefit; that upon return of the stock by the county to the appellee for cancellation, under an adjudication of invalidity, the purchasers of the bonds became entitled to the benefit thereof; and that the appellant, under its purchase, was entitled to have 400 shares of stock issued accordingly. No rights there involved are reviewable under the present bill, and the question is whether recovery of the alleged dividends upon this stock is authorized in equity, under the facts now averred, in the light of that adjudication. The several grounds of demurrer do not require examination in detail, if the bill is without equity under either of the objections.

For the relief sought, it is averred that the appellee declared a dividend of 19 per cent. upon its common stock on the day of

66

1896," when 4,170 shares had been issued, of which the "shares now held and owned" by the appellant “are part," and made payments on 3,170 shares only, thus leaving unpaid the dividends on the shares issued to Perry county (which included the stock in question), canceled on October 25, 1897, under the decree of invalidity above mentioned. It is further averred that the trust declared in favor of the appellant in the prior decree "was in existence during the years. 1896 and 1897"; that the appellant was not notified that such dividend was declared, and the appellee "concealed the same"; that the appellant "exercised reasonable diligence, but did not learn of the same until the - day of July, 1905"; and that payment was demanded and refused July 28, 1905. This bill was filed March 14, 1906, and the question arises at the threshold whether the suit in equity, if otherwise entertainable, is not barred by the long delay thus disclosed, notwithstanding these vague averments by way of excuse. The objections, both of statutory limitation and laches, are expressly raised by the demurrer, and unless the delay is excusable under the facts alleged, a fundamental requirement of equity for the exercise of its jurisdiction is wanting, and the decree dismissing the bill may well