tiff in error therefore had the burden of proof, that the trust company "purchased and became the owner of 120 shares of the capital stock of the said First National Bank of Helena." To establish that averment it was necessary to show that the original shares, confessedly held as collateral, were wrongfully converted into the new stock without the consent of the pledgor; but the fact is not so stated in the agreement, the letters and other circumstances all indicate the contrary, and the general finding of the court is conclusive of the question. The judgment below is affirmed.

(98 Fed. 692.)

NICHOLS et al. v. HAINES.

(Circuit Court of Appeals, Seventh Circuit. January 2, 1900.)

No. 627.

1. DAMAGES-CONSTRUCTION OF PROVISION IN CONTRACT.

A provision in a contract for the purchase of a crop of oranges, then upon the trees, for a lump sum, that the purchaser "is also to pay the party of the second part $1,500 at the time of making this contract as part payment of the entire purchase price of said fruit, and, in case the said party of the first part refuses or fails to comply with the conditions of this contract, then the said payment of $1,500 is to be forfeited," is one for a forfeiture, and not for liquidated damages.

2. ASSUMPSIT-Proof of CONTRACT-SEAL.

In an action in assumpsit based on a written contract which was not required to be under seal, the authority of the agent who signed the defendant's name to such contract need not be shown to have been under seal, although he affixed a seal to the signature of his principal.

In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

This is an action of assumpsit brought by Harriet M. Haines, as executrix of the last will of B. F. Haines. against Elisha R. Nichols and Robert B. Gillies, co-partners doing business as E. R. Nichols & Co., to recover money alleged to be due on the following contract:

"This contract, made this 30th day of November, A. D. 1894, between E. R. Nichols & Co., of the county of Cook and state of Illinois, party of the first part, and B. F. Haines, of the county of Volusia, state of Florida, party of the second part: E. R. Nichols & Co., party of the first part, has purchased from said party of the second part the entire crop of marketable oranges in the grove known as the 'B. F. Haines Grove,' in Volusia county and state of Florida. Said grove is estimated to contain 7,000 boxes of oranges, more or less, at $5,000, with the right to said party of the first part to have said oranges picked and packed as he desires. And the party of the second part hereby agrees not to pick or ship said oranges, and not to sell the same to any other person, and that, until the fruit is removed by the party of the first part, the said party of the second part is not to give any one permission to enter the above premises who will in any way interfere with or take said fruit. Said fruit is to be taken off the trees on or before the first day of February, 1895, in such quantities as desired by the party of the first part, unless the time for the removal of said fruit is extended by mutual agreement. The fruit is to be [paid for] as follows: $300 for each car, as fast as picked, until the balance of $5,000 is paid. And E. R. Nichols & Co., the said party of the first part, is also to pay the party of the second part $1,500 at the time of making this contract, as part payment of the entire purchase price of said fruit; and, in case the said party of

the first part refuses or fails to comply with the conditions of this contract, then the said payment of $1,500 is to be forfeited. Witness our hands and seals the day and year above written. E. R. Nichols & Co. [Seal.] "B. F. Haines. [Seal.]"

The declaration contained common counts, besides a special count on the contract. The defendants pleaded (1) the destruction of the crop of oranges by freezing before February 1, 1895; (2) the payment to Haines in his lifetime of the sum of $1,500 as liquidated and agreed damages; (3) non assumpsit; (4) that there was no crop nor any quantity of marketable oranges on the plantation referred to in the contract on November 30, 1894, or thereafter at any time before and including February 1, 1895; and (5) non est factum. To the fourth plea a demurrer was sustained, and upon the other pleas issue was joined. There was a trial by jury, which, in obedience to a peremptory instruction, returned a verdict for the plaintiff for $2,250, for which the court gave judgment. The assignment of error contains numerous specifications, but they need not be restated. It was admitted on the trial that $4,500 was the sum agreed to be paid for the crop of oranges.

Herbert S. Duncombe, for plaintiffs in error.

Thomas M. Hoyne and John O'Connor, for defendant in error. Before WOODS, Circuit Judge, and BUNN and ALLEN, District Judges.

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court.

The first error insisted upon is the admission of the testimony of Harriet M. Haines, who testified to certain conversations between Elisha R. Nichols and B. F. Haines, whose widow she said she was. It is a sufficient technical answer that she is not shown to have been the wife of the deceased at the time of the conversations concerning which she testified, but it is a more satisfactory answer that the testimony tended to prove nothing which was not established by the uncontradicted testimony of another witness, of whose competence and credibility there was no question. No evidence was offered by the defendants, there was no conflict in that offered by the plaintiff, and there was therefore no available error in the court's charge or in the refusal of instructions asked, unless in some essential respect there was a lack of evidence to justify the verdict for the plaintiff. Besides the $1,500 paid at the time of the execution of the contract, there was a subsequent payment of $1,000, and it is claimed that the first sum should have been treated as liquidated damages, the payment of which discharged the plaintiffs in error from all further liability. The proposition is manifestly unsound. The evidence does not show the quantity or value of the oranges taken by the plaintiffs in error from the place. The stipulation in the contract is not for liquidated damages, but for a forfeiture, and there is nothing disclosed which requires it to be treated otherwise. If there remained unpaid upon the contract a sum less than $1,500, say only $500, it is evident that the plaintiff could be entitled to recover only that sum and interest; and the amount unpaid being greater than the stipulated forfeiture, and being definitely ascertainable, that amount, with interest, is the proper measure of the recovery.

The next contention is that the execution of the contract by the plaintiffs in error was not proved. Their co-partnership name was

signed to the agreement by an agent whose authority, otherwise amply proven, was not shown by an instrument under seal. The contract is one to which a seal was not necessary. The action is in assumpsit, not covenant, and the seals attached may be regarded as surplusage. For authorities, see 1 Am. & Eng. Enc. Law (2d Ed.) p. 953.

It is suggested, further, that proper proof was not made of the plaintiff's appointment as administratrix. Her appointment was not specifically denied, and, if proof on the point was necessary, it is found in her own testimony, which in that respect was admitted without objection. The judgment below is affirmed.

(98 Fed. 694.)

NEW YORK, N. H. & H. R. CO. v. BAKER,

(Circuit Court of Appeals, Second Circuit. December 7, 1899.)

No. 51.

CARRIERS-LIABILITY FOR INJURY TO PASSENGER.

An act of the legislature of New York required the elevation of the track of a railroad in New York City, and created a municipal board, which was given entire charge of the work through a designated portion of the city. While the work was being done the railroad company constructed temporary tracks on either side of the structure being built, over which it ran its trains. Through the negligence of the employés of a contractor under the board, engaged in the work, a derrick was permitted to swing over one of the tracks, and struck a car in a passing train, injuring the plaintiff, who was a passenger therein. Held, that the state having taken the work entirely out of the hands of the railroad company, and placed it in the hands of others, over whom the company had no control, the latter was not liable for their negligence, or for the injury to the plaintiff, unless its own employés failed to exercise proper care to anticipate or avoid the danger.

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

This is a writ of error to the circuit court, Southern district of New York, to review a judgment in favor of defendant in error, who was plaintiff below, entered upon the verdict of a jury against plaintiff in error, who was defendant below. The action was brought to recover damages for the loss of services of plaintiff's wife, caused by an injury received by her while a passenger on a train operated by defendant. The facts sufficiently appear in the opinion.

H. W. Taft, for plaintiff in error.

John J. Crawford, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE, Circuit Judge. The accident happened April 17, 1895, in that part of 4th avenue called "Park Avenue," near 109th street, New York City, at which place the work known as the "Fourth Avenue Improvement" was at that time in progress. The plaintiff's wife was riding in the last coach of a passenger train of defendant coming

from Mt. Vernon to Grand Central Depot, New York City. The circumstances of the accident are accurately set forth in the brief of plaintiff in error as follows:

*

"The train was running past that portion of the avenue where there is now an elevated stone viaduct. The viaduct was not then completed, but the walls on either side were in process of construction. Trains were being run on a temporary wooden trestle which was built over the avenue, and outside of the walls of the viaduct. Incoming trains ran on the east of these walls; outgoing trains, on the west. At the place of the accident the walls which now sustain the roadbed were being erected, and a derrick was placed between the walls for the purpose of placing stone upon them. This derrick stood from 16 to 18 feet from the nearest rail of the incoming or south-bound track. * To the end of the derrick boom was fastened a fall and block, with a hook attached. The boom was elevated and lowered and the derrick swung by horse power. When the boom of the derrick was lowered sufficiently and swung towards the track, it projected over the track. * * * Just before the accident a stone had been placed upon the wall next to the south-bound track, and one of the inspectors in charge of the work had found fault with the way it was set, and had directed Flaherty [a subcontractor who was doing the masonry work] to reset it. At that time the chain, block and fall were over the place where the stone had been set on the wall. Flaherty gave the order to pick up the stone and reset it, the first direction being to throw the boom up. While the boom was being lifted, the train which carried Mrs. Baker passed by, the boom swung over the track, and the hook suspended from the chain in some way caught in one of the cars and threw the boom towards the south, causing it to strike against a guy rope and swing back. On the rebound some portion of the tackle struck one of the windows of the car in which Mrs. Baker was riding, causing the injuries complained of. The derrick and boom could be used in such a manner that the boom would not interfere with passing trains, and it was customary so to operate it. This was the first accident resulting from the use of this derrick, though it had been in use some months."

Manifestly, the proximate cause of the accident was a careless manipulation of the derrick by those who had it in operation. A single assignment of error has been presented in the argument, namely, that the trial judge erred in charging the jury as follows:

"If by due diligence on the part of those men who were handling the derrick this accident might have been prevented, the plaintiff is entitled to a verdict;" and later on: "If it was the fault of those who were doing that work that caused this injury to this woman, the defendant is liable."

The roadbed and railroad on which the accident happened were owned by New York & Harlem Railroad Company. The defendant's trains were run over them under a lease made in 1848. The legislature of the state of New York, having determined to raise the grade of the railroad bridge at Harlem river, and the approaches thereto, provided for the changes necessary to that end by chapter 339, Laws 1892, and some amendatory acts (chapter 548, Laws 1894, and chapter 594, Laws 1896). The relevant parts of such legislation directed that the grade of the New York & Harlem Railroad be changed from 106th to 149th streets, and that the viaduct be adapted to the new grade l'ne by raising the parapet walls, etc. So much of the work as consisted in raising the bridge and the approach from the north, it left the railroad company to do in its own way and at its own cost. As to so much, however, as lay south of the Harlem river, which included the location of the accident, it took the work entirely out of the hands of the railroad company, confiding the execution, direction,

and superintendence of the work to a board to be known as the "Board of Improvement of Park Avenue above 106th Street, in the City of New York." This board was to consist of five members, two of them skilled engineers, all appointed by the mayor of New York, who was authorized to fill any vacancies that might occur. The board were given power to pass suitable by-laws, to select presiding officer and a secretary, to keep records, and accounts, and were expressly required "to take entire charge and control of said improvement from 106th street to Harlem river, to execute the same in a substantial and workmanlike manner." They were further required to do such work as far as possible by contract. One half of the expense (but such half not to exceed $750,000) was to be assessed upon property benefited and on the city at large. The other half was to be paid by the New York Central & Hudson River Railroad Company, or by the New York & Harlem. In pursuance of the powers conferred, and of the requirements of this act, the board for the improvement of Park avenue contracted with Norton & Hulsekemper for the doing of the work, under the superintendence of the "engineer of said board in charge, and such assistants and inspectors under him as may be appointed by him or by said board." Flaherty was a subcontractor of Norton & Hulsekemper.

The measure of responsibility of a railroad company to the passengers it contracts to carry is well settled, and the authorities cited on the argument do not conflict. The carrier is not an insurer of the safety of the passenger. For the careless or malicious act of a trespasser upon the track, tampering with the rails or switches, it would not be responsible, although it would be for any lack of "proper care" to protect against such interference. So, too, it would not be responsible for the carelessness of a workman employed by the owner of property contiguous to its line to blast out rock, whereby a flying fragment was thrown against a train, but it would be liable for lack of "proper care" in anticipating and guarding against the probable effects of blasting dangerously near its track. What is "proper care" in all such cases will depend upon, and probably vary with, the circumstances of each particular case. Deyo v. Railroad Co., 34 N. Y. 9; Worth v. Railway Co. (C. C.) 51 Fed. 171; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Thomas v. Railroad Co., 148 Pa. St. 180, 23 Atl. 989; Fredericks v. Railroad (Pa. Sup.) 27 Atl. 689; Missimer v. Railroad, 17 Phila. 172. The degree of care required is well expressed in Pennsylvania Co. v. Roy, 102 U. S. 456, 26 L. Ed. 144, as follows:

"Although the carrier does not warrant the safety of the passengers at all events, yet his undertaking and liability as to them go to the extent that he or his agents, when he acts by agents, shall possess competent skill, and, as far as human care and foresight can go, he will transport them safely. * * * [He must] observe the utmost caution characteristic of very careful, prudent

men."

And this obligation the carrier cannot get rid of by any act of his which substitutes some one other than himself as the conservator of the safety of his track or of the vehicles which run upon it. Thus, if, instead of building, equipping, and managing its own road