this court to change the verdict which is the sole basis of the judgment in question.

It results that the judgment must be, and is, reversed, and the cause remanded to the court below for a new trial.

PRICE et al. v. CONNORS.

(Circuit Court of Appeals, Ninth Circuit. June 18, 1906.)]

No. 1,215.

RELEASE RESCISSION-TENDER OF CONSIDERATION.

Where, in an action for injuries to plaintiff by a gunshot wound, defendants put in issue all the allegations of the complaint, pleaded a release executed by plaintiff in consideration of a payment of $500, which plaintiff sought to avoid on the ground that it was executed while he was intoxicated and the jury might have found that the whole of the damages suffered by plaintiff did not in fact amount to $500, plaintiff was required to have repaid or tendered the money received by him as a condition of his right to avoid the release.

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Ira D. Orton, Albert Fink, W. H. Metson, J. C. Campbell, and F. C. Drew, for plaintiffs in error.

L. H. Brewer, F. L. Morgan, Ben Sheeks, Geo. D. Schofield, and Albert H. Elliot, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. This case is brought here by writ of error to the United States District Court for the District of Alaska, Second Division. The action was for damages for personal injuries sustained as the result of a gunshot wound, and resulted in a verdict and judgment for the plaintiff.

The defendants to the action, after putting in issue the allegations of the complaint, set up as an affirmative defense in their answer that the plaintiff, for and in consideration of the sum of $500 paid to him by them, had released and discharged them from all liability for the alleged cause of action. The plaintiff replied to that affirmative defense, and in his reply alleged that if such release, discharge, and satisfaction was in existence, the instrument was obtained by the defendants collusively acting together for the purpose of cheating and defrauding the plaintiff out of his rights, and by then and there taking advantage of the plaintiff while he was intoxicated to such an extent as to be wholly unfit for the transaction of any business. On the trial the defendants introduced in evidence a written release executed and acknowledged by the plaintiff, to the effect stated in their answer. The plaintiff denied all knowledge of the execution of the release. In respect to the question whether or not the plaintiff was intoxicated at the time of the execution of the release, the evidence was conflicting, but he himself testified on the trial that Hoxsie, who represented the defendant in the negoti

ations, approached him twice. "He sent for me," said the witness, "first on the 13th [of October]. The second time, when he offered me the $500, I went up and told Mr. Schofield [plaintiff's attorney]. I went right away, I guess. I think I went and seen him and told him the same day this proposition was made to me to settle for $500. I told him I had been offered $500 to settle the case, and from that time I don't believe I saw Mr. Schofield again until I went out."

The court below instructed the jury, among other things: "That if a person who has been injured by the willful, wanton, or negligent act of another is fraudulently induced to sign a release for the damages sustained, such release will not operate as a bar to the prosecution for damages to recover for such injuries; and, in this case, if you believe from the evidence that the written release offered in evidence by the defendants was signed by the plaintiff at a time when he was not in a condition to understand what he was doing, then such release would not be binding upon the plaintiff, and would constitute no defense against the cause of action set forth in the complaint. And it would be immaterial whether such condition of mind was brought about by the plaintiff or by the connivance of others. I also further instruct you in this connection that if you believe from the evidence that plaintiff received the sum of $500 from one Charles Hoxsie, acting as agent for defendants, or any of them, such fact would be immaterial if you further believe from the evidence that the release was fraudulently obtained, or was signed at a time when plaintiff did not realize what he was doing, and, under these circumstances, it would not be necessary that plaintiff should tender back said money, or repay the same to the defendants, but the jury should, in case they return a verdict for plaintiff, deduct such sum of $500 from the damage assessed, if they believe from the evidence that such sum was paid to plaintiff."

The giving of these instructions to the jury were excepted to at the time by the defendants, and are assigned for error here, as also the refusal of the court to give the following instruction requested by the defendants:

"A release executed, even though it be executed by one who is wholly incompetent by reason of intoxication to legally execute such release, is not thereby rendered void, but merely voidable. In such case, if the plaintiff desired to avoid said release, it was his duty to restore, or offer to restore, within a reasonable time, everything of value which he received as a consideration for such release, and in the event of such failure to do so, he will be bound by the release, even though the jury should believe he was so intoxicated at the time of signing it as to be incompetent of executing it.”

We are of the opinion that the court below erred in giving the instructions complained of. The case was not one of that class wherein the court, having it within its power to fully protect the interest of the adverse party in case of rescission, might proceed to a hearing without requiring the repayment or tender of the money received in consideration of the release, illustrations of which class of cases may be found in Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486, and Billings v. Smelting Company, 52 Fed. 250, 3 C. C. A. 69. In the present case the jury might have found that the whole of the damage suffered by the plaintiff did not, in fact, amount to $500-the amount the defendants paid the plaintiff in settlement. And since the defendants put in issue all of the allegations of the complaint, it might, if the evidence justified it, have been found by the jury that the plaintiff was not entitled to recover at all. Yet the court below ruled that it was

not necessary that the plaintiff should have repaid or tendered the money received by him, as a condition precedent to avoiding the release. That such is not the law upon such a state of facts was distinctly held by this court in the case of Hill v. Northern Pacific Railway Company, 113 Fed. 914, 51 C. C. A. 544.

The judgment is reversed, and cause remanded to the court below for a new trial.

BOSTON & M. R. CO. v. STOCKWELL.

(Circuit Court of Appeals, Second Circuit. May 22, 1906.)

No. 243.

1. CARRIERS-INJURIES TO PASSENGERS-ContributoRY NEGLIGENCE-QUESTION FOR JURY.

Intestate boarded defendant's train at a small station, where there was neither station agent nor baggageman. He went into the baggage car with a hamper, according to custom, and, after receiving a check, stepped on the platform, while the train was in motion, to go to the smoking or passenger car, when a gust of wind raised his hat, and, as he relinquished his hold on the door handle of the car, he was thrown from the platform and killed. Held, that intestate was not guilty of contributory negligence as matter of law.

2. SAME-NEGLIGENCE-EVIDENCE-QUESTIONS FOR JURY.

Defendant had provided platform gates for its cars which it was the duty of the brakeman to close when the train departed from stations. It was also the brakeman's duty when a train was behind time to protect the rear end. The brakeman was engaged in this duty when the train left a small station at which there was neither station agent nor baggageman, after intestate had boarded the baggage car with his baggage, according to custom. After he obtained a check for his baggage, he started to leave the baggage car, as required, after the train had started, and while he was passing from one car to the other he was thrown from the platform and killed. Held, that whether the gates provided were sufficient, and whether the carrier was guilty of negligence in failing to have them closed, were for the jury.

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

See 131 Fed. 152.

Writ of error to review a judgment of the United States Circuit Court for the District of Vermont, entered upon the verdict of a jury in favor of the plaintiff. The material facts are stated in the opinion. W. B. C. Stickney, for plaintiff in error, Clarke C. Fitts, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

TOWNSEND, Circuit Judge. The assignments of error challenge the action of the trial court in submitting the case to the jury, on the ground that the evidence failed to show negligence on the part of defendant, but showed that plaintiff's testator was guilty of contributory negligence, and are further directed against certain portions of the charge of the court.

On the morning of June 29, 1903, plaintiff's husband boarded defendant's train as a passenger at Northville, a small station where the defendant regularly stopped its train to take on passengers and their baggage, and where there was neither a station agent nor baggageman. He went into the baggage car with a hamper, and, after receiving a check, stepped on the platform, in order to go to the smoking or passenger car, when a gust of wind raised his hat, and, as he relinquished. his hold of the rail or door handle of the car to grasp for his hat, he was thrown from the platform and killed. There was considerable evidence tending to show contributory negligence on his part, but this was all submitted to the jury in an admirable charge, reviewing all the material facts, by which the jury were instructed that Mr. Stockwell was bound to look out for himself, as a prudent man should do under such circumstances, and that if the accident was the result of any fault or negligence on his part the plaintiff could not recover.

We are satisfied, upon an examination of the evidence, that the question of contributory negligence was one upon which reasonable men might fairly differ in opinion, and that under the settled rule this question was properly left to the jury. Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485.

The serious question in the case is as to whether there was any evidence tending to show neglect by the defendant of any legal duty to plaintiff's testator. The complaint alleged that it was the duty of defendant to provide suitable gates in place to prevent passengers who were passing over the platforms of the cars while in motion from falling off from said platforms, and that defendant failed in its duty in this regard. The facts in regard to the gates are as follows:

"It was the usual duty of the brakeman to open and close the gates, hereinafter referred to, as the train arrived and departed from the stations, and the usual place of the brakeman was at or near the smoking or passenger car as the train stopped at stations; but the rules of the company required that when the train was running behind time and another train following close that the brakeman should take his position at the rear end of the train with the flag, so that in case the train was stopped for any cause he could run back and flag any approaching train, and the brakeman on this train on the day in question did so take his position on the rear end of said train No. 45 at Newbury, as required by the rule, and as was made necessary by the fact that the said express train was running close to train 45 after Newbury was passed, and the brakeman, for said reason, was at the rear end of the said train when the said stop was made at Northville station. The baggage car (which Mr. Stockwell went into upon boarding the train) and passenger and smoker were equipped with gates upon both sides of the platform, strongly built of iron, and standing about the same height as the hand rails on the outside of the cars. Upon the doors of the cars inside was a warning to passengers not to ride on the platform. These gates were not shut at the time of the accident, for the reason that the brakeman was at the rear. It did not appear that Mr Stockwell had any knowledge of, or any reason to know of, the cause of the train's delay, or of the fact that the brakeman was out of his usual place, at the rear end of the train, nor that the gates would not be shut as the train left the station, as was the usual custom. There was no notice at the station as to how passengers taking the train there could get their baggage checked. The conductor, as the train stopped at Northville, took his usual position at the passenger coach to help passengers on and off the car. There was no employé of the defendant at the smoking car or baggage car, except the baggagemaster inside the baggage car.”

It was claimed that these gates were not of a sufficient height to prevent a person from falling off the platform, and that they were not put there for any such purpose, but only to prevent passengers from alighting from cars upon the wrong side at stations, and "that passengers were not expected to pass through the trains when in motion." Whether a jury would be justified in a finding of negligence predicated upon the mere fact, unaccompanied by other circumstances, that gates such as those here in question were not closed while the train was in motion is a question which is not before us, and upon which we express no opinion. But here the evidence showed that defendant failed to provide any facilities for checking baggage at Northville, and failed to establish any rule, or give notice or furnish information to passengers, as to how baggage received there should be checked, and that, while passengers were forbidden to ride in the baggage car, it was frequently a custom, acquiesced in by the defendant, for passengers taking the train at Northville to go into the baggage car, get their baggage checked, and then go back into the passenger car. By virtue of this practice the passenger was permitted to enter the baggage car in order to check his baggage, but by rule he was expressly forbidden to remain therein. We think, therefore, that the defendant must be assumed to have expected that passengers would pass from the baggage car to the passenger car while the train was in motion, and that it was its duty to provide all necessary and proper means for the protection of passengers at such time. On this occasion defendant failed to provide in the usual way for the closing of the gates, because the brakeman charged with that duty was otherwise engaged at the rear of the train, and no one was supplied to take his place. The customary practice, sanctioned by the defendant, constituted an invitation to passengers to pass over the platform leading to the baggage car when the train was in motion, and therefore the questions as to the sufficiency of said gates and as to the negligence of defendant in failing to have them closed were proper ones to be submitted to the jury. The language of the charge on this branch of the case was clear, accurate, and eminently fair. We are satisfied that there was no error in the submission of this question to the jury, and that the charge of the court fully and fairly covered the issues raised in the case, and that there was no error therein.

The assignment of error as to submission to the jury of the question of reasonable advice from the baggageman is not raised by any exception.

The judgment is affirmed.