Ostrander v. Meunch. OSTRANDER v. MEUNCH. (Eastern District of Missouri. March, 1881.) 1. ASSIGNMENT UNDER STATE LAW-BANKRUPT ACT.-An assignment for the benefit of creditors under state law is void as against an assignee in bankruptcy under act of congress, but is not void ab initio. It is subject to be avoided under proceedings taken under the bankrupt act. 2. SAME-SAMe-Demand fOR ASSETS — INJUNCTION.— Where an assignee in bankruptcy was appointed after an assignee under state law had taken possession of the estate, he was entitled upon demand to all the assets in the hands of the latter. It was not necessary to apply for an injunction to restrain the assignee under the state law from disposing of them. In bankruptcy. Appeal from the judgment of the district MCCRARY, Circuit Judge.— It is well settled that an assignment for the benefit of creditors under a state law is void as against an assignee in bankruptcy under the national bankrupt act. But it seems that the assignment under the state law is not absolutely void ab initio, but only subjecť to be avoided by proceedings taken under the bankrupt act. In the present case it appears that the assignee, under the state law, had taken possession of the estate and partially executed the assignment prior to the adjudication in bankruptcy. The assignee in bankruptcy, soon after being qualified and receiving a conveyance of the estate from the register, made formal demand in writing upon the assignee, under the state law, for the estate. The latter, however, continued to dispose of a part of the estate by paying therefrom certain dividends. The court below instructed the jury that this he had no right to do, and that he was consequently liable to the assignee in bankruptcy for the assets in his hands at the time the demand was made. It is said that the assignee in bankruptcy was Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. bound to enjoin the further proceedings under the state law, and that he is therefore not entitled to recover for the amount paid out as dividends after demand. This point is not well taken. The title to the estate passed to the assignee in bankruptcy before he demanded it. From the time of the conveyance of the assets to the assignee in bankruptcy the latter was their owner, and the assignee under the state law ceased to have any power to dispose of them or appropriate them in any manner. It was the case of property belonging to one person, and found in the possession of another. No injunction was necessary. A demand was quite sufficient. There is no error in the proceedings, and the judgment of the district court is accordingly affirmed. SCHOFIELD V. THE CHICAGO, MILWAUKEE & ST. PAUL RAILROAD COMPANY. (District of Minnesota. June, 1881.) 1. DIRECTING A VERDICT.-It is now settled in the federal courts that if, upon the evidence, the court would set aside a verdict against the party, if rendered, it is its duty to charge the jury not to return such a verdict. Upon a motion to direct a verdict for the defendant the question is, whether if a verdict were rendered for plaintiff upon his evidence, the court would set it aside as being contrary to the evidence. 2. CROSSING RAILWAY TRACK-DUTY OF LOOKING OUT-CONTRIBUTORY NEGLIGENCE. As there is great danger in crossing a railroad track where trains are liable to pass at any time, great care is demanded alike of the engineer in charge of the locomotive and of the traveler upon the highway. Their rights, duties and obligations are mutual and reciprocal. Both must look out for danger. 3. SAME-SAME-SAME.- Held, accordingly, that where the plaintiff was familiar with the crossing, and where he had a fair view of the railroad from the depot to the crossing, about seventy rods, and could have seen the track for that distance any time after approaching within six hundred feet of the crossing, it was contributory negligence for him to drive upon the track without looking for an approaching train, and he could not recover even if the engineer was also guilty of negligence in running the train at a great and dangerous speed, and in failing to give warning of his approach by sounding the whistle or ringing the bell. Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. Action for damages for personal injuries received by plaintiff while driving a horse and sleigh across the railroad track of defendant. On motion that the court instruct the jury to find for the defendant, on the ground that the plaintiff's evidence, being all in, shows contributory negligence on his part. Pierce & Congdon, for plaintiff. Bigelow, Flandreau & Clark, for defendant. MCCRARY, Circuit Judge. The plaintiff having closed his evidence, the defendant moves the court to instruct the jury to find for defendant, upon the ground that the plaintiff by his own showing was guilty of negligence which contributed to the accident by which he was injured. It is now settled law so far as the federal courts are concerned, that if, upon the evidence, the court would set aside a verdict against the party, if rendered, it is its duty to charge the jury not to return such a verdict. Pleasants v. Fant, 22 Wall. 116. This rule devolves upon the court, upon this motion, the duty of determining whether, upon the evidence as it stands, a verdict for plaintiff could be upheld. The question is not whether upon the facts, in the opinion of the court, such a verdict ought to be rendered; if the court were to assume that to be the question, it would usurp the province of the jury. The question is whether, if a verdict were rendered for plaintiff upon his evidence now in, the court would set it aside upon motion as being contrary to the evidence; and it is to be judged by the same rules that would prevail upon the consideration of such a motion after verdict. Let us inquire, then, whether upon the evidence the question of contributory negligence is fairly open for the consideration of the jury, and may be decided either way within their discretion. The undisputed facts upon which defendant bases this motion are the following: First. The plaintiff was familiar with the crossing; had often passed it, and the usual sign, printed in large letters over Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. it, gave express warning to persons on the highway to "look out for the cars." Second. At the place of crossing, the highway and railroad are nearly on a level, and for a distance of at least six hundred feet before reaching the crossing the plaintiff had a full view of the railroad from the depot to the crossing, a distance of seventy rods, and for a distance of about thirty-three feet, upon coming to the track, he could see beyond the depot, a distance of some twenty rods. Third. If at any time after the train passed the depot the plaintiff had looked in that direction he would have seen it, and if not then too near the train for escape, by stopping his horse he could have avoided the accident and injury. That these facts, standing alone, show contributory negligence on the part of plaintiff, is too plain to admit of doubt or argu ment. But there is evidence tending to establish other facts, and these, for the purpose of this motion, must be taken as established. Being so regarded, the plaintiff claims that they authorize a verdict in his favor notwithstanding the facts and circumstances above enumerated. These latter facts are as follows: First. The train was not a regular one, and no train was due at the time of the accident. Second. The train was moving at an unusual and dangerous rate of speed. Third. The train did not stop at the depot, as trains usually do, but not always. Fourth. There was no signal by blowing the whistle or ringing the bell after the train passed the depot. These facts, if established, would clearly show negligence on the part of the defendant, and I therefore assume, for the purposes of this motion, that such negligence is established. This, however, does not of itself necessarily authorize a verdict for the plaintiff. If there was mutual fault- if both plaintiff and defendant were guilty of negligence - then, unless the defendant acted wantonly, there can be no recovery. Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. Both parties were bound to exercise such care as under ordinary circumstances would avoid danger; such care as men of common prudence would ordinarily use under the circumstances. The degree of care required in such cases depends upon the danger. As there is necessarily great danger in crossing a railroad track where trains are liable to pass at any time, great care is demanded alike of the engineer in charge of the locomotive and of the traveler upon the highway. Both have the right to pass, and their rights, duties and obligations are mutual and reciprocal, and the same degree of care is required of each. The whole law of the case may be summed up in these words, taken from the opinion in the case of Continental Improvement Company v. Stead, 95 U. S. 165: "Both parties are charged with the mutual duty of keeping careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty." If neither party keeps a careful lookout for danger, and an accident and injury ensues, there is no cause of action. Do the facts relied on by plaintiff excuse him from the duty of looking out for danger by looking towards the depot for a coming train before driving on to the track? If not, do they show that by defendants' negligence the plaintiff was disabled from preventing the accident by ordinary prudence? It was a special and not a regular train. This fact may be considered as bearing upon the degree of care and caution required of plaintiff; but I am unable to hold that it excuses him from the duty of looking out for a coming train. It is common information that special trains are frequently run over all important lines of railroad, and no case has gone so far as to hold that a traveler crossing a railroad track is only bound to look out for regular trains. I assume that the train was moving at an unusual and dangerous rate of speed. This very clearly did not relieve the plaintiff from the duty of looking out, but it presents the question whether he had time after he could have seen the |