(Supreme Court of Colorado. Dec. 6, 1920. Rehearing Denied Jan. 10, 1921.) 1. Judgment 460 (1)-Petition to enjoin enforcement on ground that it is unconscionable held insufficient. Petition to enjoin enforcement of default judgment on ground that enforcement thereof would be unconscionable and inequitable, which did not allege fraud, deceit or mistake, or explain plaintiff's failure to defend in the previous action, and which made no attack upon the judgment, held insufficient. 2. Public lands 132-Failure to occupy and improve held not ground for injunction against unlawful detainer against one in illegal possession. Where one in possession of unsurveyed public domain, against whom writ of restitution had been issued pursuant to judgment on unlawful detainer, refused to abide by the judgment, and brought an action to enjoin its enforcement, failure of the claimant for whom such judgment had been rendered to occupy and make improvements on the land, as required by Rev. St. 1908, § 5130, was not ground for the injunction; such failure not being due to neglect. 3. Equity 65(1)-No man may take advan tage of his own wrong. In equity no man can take advantage of his own wrong. En Banc. petition was dismissed by the district court, and he brings the cause here for review on error. It is now before us on his application for supersedeas. E. B. Adams, of Telluride, and William H. Gabbert, of Denver, for plaintiff in error. Moynihan, Hughes, Knous & Fauber, of Montrose, for defendant in error. BURKE, J. (after stating the facts as above). [1] The complaint contains no allegation of fraud, deceit, or mistake. In it Rogers makes no explanation of his failure to defend in the justice court, and makes no attack upon the judgment there entered. The injunction is sought solely upon the ground that to permit the enforcement of that judgment would be unconscionable and inequitable. If so what, if anything, must the aggrieved party do to entitle him to relief? science to execute such judgment, and of which "Any facts which prove it to be against conthe injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault thorize a court of equity to interfere by injunc or negligence in himself or his agents, will aution to restrain the adverse party from availing himself of such judgment." Fisher v. Greene, 5 Colo. 541, 560 (quoting 2 Story, Eq. Jur. § 887). "Courts of equity will seldom interfere to enjoin a judgment at law where the defendant was served and allowed a judgment by default." Richardson Drug Co. et al. v. Dunagan, 8 Colo. Error to District Court, San Miguel Coun- App. 308, 319, 46 Pac. 227, 232. ty; Thomas J. Black, Judge. Action by Lawrence E. Rogers against Asa that something happened subsequent to the [2, 3] It is here urged on behalf of Rogers J. Bruce. Judgment of dismissal, and plaintiff brings error, and applies for supersedeas. judgment which destroyed its force, whereby it ceases to be effective, and the relief prayed Supersedeas denied and judgment affirmed. for should be granted. The only evidence to Defendant in error, Bruce, brought unlaw-support this position is the fact that Bruce ful detainer against plaintiff in error, Rogers, failed to do those things required by sec in justice court. The premises in question tion 5130, R. S. 1908, in reference to his were a portion of the unsurveyed public claim to the property in question, at a time domain. Service was had, Rogers defaulted, when Rogers was, either by open defiance of and, on proof, judgment was entered for a valid judgment, or by litigation which tied Bruce. Rogers appealed to the county court. the hands of Bruce, maintaining that posThe appeal was dismissed, and writ of pro- session which had been adjudicated illegal. cedendo was issued to the justice. Writ of Such failure was not due to "neglect," but to restitution was issued out of the justice court a commendable consideration for the law and served on Rogers. Disregarding the and its orderly enforcement. In equity no mandate thereof, he brought this action man can take advantage of his own wrong. against Bruce in the district court to enjoin The supersedeas is denied, and the judgthe enforcement of the justice judgment. His ment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (193 P.) GREEN v. STATE. (No. A-3675.) (Criminal Court of Appeals of Oklahoma. Jan. 18, 1921.) 2. Master and servant 204 (2), 228 (2)-Federal Safety Appliance Acts precluded defense of assumption of risk, but defense of contributory negligence remains. Under the federal Safety Appliance Acts Appeal from County Court, Stephens Coun- (U. S. Comp. St. § 8605 et seq.) an employee ty; G. T. Burrows, County Judge. does not assume risk of injury from a car not equipped as the statutes require; but the On the 17th day of November, 1919, Bill defense of contributory negligence remains unGreen was convicted of having in his possession intoxicating liquor, with the intent of vio- touched, even by the act of 1910 (chapter 160, § 4, 36 Stat. 299 [U. S. Comp. St. § 8621]), lating the prohibitory liquor laws of the state, and an employee is not relieved from taking by selling or giving away or otherwise dispos-ordinary care for his own protection in dealing of the same to other persons, and he ap- ing with such a car. peals. Judgment reversed. J. B. Wilkinson, of Duncan, for plaintiff in error. S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State. PER CURIAM. In this case the Attorney General has confessed error, setting out that the record fails to disclose that the plaintiff in error was in possession of the certain intoxicating liquor for unlawful purposes, as charged in the information, and a reading of the record bears out the Attorney General's contention. The case is therefore reversed and remanded to the trial court. STATE ex rel. GARNETT v. JUDGE OF (Criminal Court of Appeals of Oklahoma. Petition by the State, on the relation of one Garnett, for a writ of mandamus to be directed to the District Judge of Pontotoc County. Cause dismissed on petitioner's motion. PER CURIAM. The petition of the relator filed in this court on December 30, 1920, for peremptory writ of mandamus, directed to J. W. Bolen, judge of the district court of Pontotoc county. Hearing of the application was set for January 10, 1921, at which time the petitioner moved to dismiss the cause. Motion sustained and cause dismissed. (108 Kan. 133) 3. Master and servant 250-Action may be predicated both on federal Employers' Act and federal Safety Appliance Acts. An action to recover damages resulting from death of an employee may be predicated on both the Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the Safety Appliance Acts (U. S. Comp. St. § 8605 et seq.) and the plaintiff may go to the jury on as many grounds of recovery as the evidence tends to establish, under proper instructions as to each, without electing between the acts mentioned. 'The The action was one to recover damages re- 5. Evidence 244(15)—In action under fed- FLANIGAN v. HINES. Director General of stating the condition of the car and certain Railroads. (No. 23111.)* (Supreme Court of Kansas. Dec. 11, 1920.) (Syllabus by the Court.) 1. Commerce 27 (5)-No recovery for death of railroad employee unless he and his employer were then engaged in interstate com merce. facts attending the accident, as ascertained by the inspector after the accident, was not admissible in evidence. 6. Master and servant 274(7)—Rules of carrier held admissible on issue of switchman's contributory negligence. Printed rules of the carrier, settled usages of the particular yard established by concurrence of both employer and employees, and instructions given by the employer to employees, making for greater safety in handling the badorder car, brought to the attention of the deceased, and violated by him, were admissible in evidence on the issue of contributory neg In order that there may be recovery under the federal Employers' Liability Act (chapter 149, § 1, 35 Stat. 65 [U. S. Comp. St. § 8657]) of damages resulting from death of a railroad employee, the injured person as well as the carrier must have been engaged in interstate commerce when the injury occurred.ligence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied January 14, 1921. 7. Commerce 8(6)-Damages in action under federal Safety Appliance Acts held not governed by state Workmen's Compensation Act. In an action predicated on the Safety Appliance Acts (U. S. Comp. St. § 8605 et seq.) the amount of damages recoverable is not governed by the Workmen's Compensation Act of this state, under which the carrier has elected to operate. of Martin Wilbur Flanigan, deceased, against the defendant, Walker D. Hines, as Director General of Railroads, under and by virtue of an act of the Congress of the United States, commonly called the federal Employers' Liability Act, for the purpose of recovering damages for the death of said Martin Wilbur Flanigan, claimed by the plaintiff to have been caused by the defendant or his predecessor in office as Director General of Railroads, while the deceased under the direction of said Di Appeal from District Court, Wyandotte rector General or his agents and employees County. Action by Ura Flanigan, as administratrix, etc., against Walker D. Hines, as Director General of Railroads, etc., operating the Missouri, Kansas & Texas Railway Company, for damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with directions to grant new trial. W. W. Brown, of Parsons, A. L. Berger, of Kansas City, Kan., and O. T. Atherton, of Parsons, for appellant. was attempting to move a car, in violation of another act of the Congress of the United States commonly known as the federal Safety | Appliance Act. By the terms of the last-named act it is made unlawful for any common carrier engaged in interstate commerce to haul, or permit to be hauled or used on its line, any car not equipped with couplers, coupling automatically by impact, and which could be uncoupled without the necessity of men going between the ends of cars; and said common carrier, engaged in interstate commerce, by the terms of said Safety Appliance Act, is held liable for the death or injury of any employee of said common carrier caused to such em S. L. Trusty, of Kansas City, Mo., Lee O.ployee by reason of or in connection with the Carter, of Kansas City, Kan., and W. W. McCanles, of Kansas City, Mo., for appellee. BURCH, J. The action was one to recover damages resulting from death of a switching crew foreman, who was killed while assisting in preparing a defective car for move ment from the bad-order track to the repair track in the defendant's Glen Park yards. The plaintiff recovered, and the defendant appeals. The defect in the car consisted in absence of a drawbar, which made it necessary to use chains to move the car. The accident occurred at night, and the deceased was killed while he was holding a lantern so that one of his brakemen could see to attach chains to the car for the purpose of moving it. It is movement or hauling of a car with equipment The defendant admitted the railroad was a highway of interstate commerce. The plaintiff offered evidence tending to show the deceased was also engaged in interstate commerce when he was killed, but the evidence was rejected. The defendant offered evidence tending to show the deceased was guilty of contributory negligence, which caused his death, but the evidence was rejected. The allegations of the petition were such that recovery might rest on the federal Employers' Liability Act (U. S. Comp. St. 88 8657-8665) or on the federal Safety Ap-ed by reason as aforesaid, and that the depliance Act (U. S. Comp. St. § 8605 et seq.). The court required the plaintiff to elect be tween the two statutes, and she elected to treat the action as one for recovery under the Employers' Liability Act for violation of the Safety Appliance Act. The court instructed the jury as follows: "This action is brought and prosecuted by the plaintiff, as administratrix of the estate fective condition thereof was the proximate cause of his death, then you are instructed that the plaintiff is entitled to recover in this action, and your verdict should be for the plaintiff." It will be observed that the instruction eliminated as an element of a cause of action under the Employers' Liability Act the fact that the deceased was engaged in interstate (193 P.) commerce. The Employers' Liability Act, Comp. St. § 8659). When violation of a statreads in part as follows: [1] The decisions are uniform and conclusive to the effect that it is indispensable to liability under this statute that the injured person should have been engaged in interstate commerce when the injury occurred. Thornbro v. Railway Co., 91 Kan. 684, 139 Pac. 410, Ann. Cas. 1915D, 314; Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297; Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Peder sen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Minn. & St. Paul Ry. v. Popplar, 237 U. S. 369, 35 Sup. Ct. 609, 59 L. Ed. 1000; Chicago, B. & Q. R. Co. v. Harrington, 241 · U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941; Erie Railroad Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319. The Safety Appliance Act may be related to an action under the Employers' Liability Act. As the quotation from the Employers' Liability Act indicates, liability under that statute is predicated on negligence of the carrier. Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B. 475. For the purpose of suit under the Employers' Liability Act, violation of the Safety Appliance Act constitutes negligence per se. San Antonio Ry. v. Wagner, 241 U. S. 476, 484, 36 Sup. Ct. 626, 60 L. Ed. 1110; St. Louis Iron Mountain Ry. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; C., B. & Q. Ry. v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Chicago, R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204; Spokane & Inland R. Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125. The Employers' Liability Act premits contributory negligence of the injured employee to be interposed as a defense, but not as a complete defense. Damages are diminished in proportion to the negligence chargeable to the employee. However, if negligence of the carrier consist in violation of the Safety Appliance Act, the employee shall not be held to have been guilty of contributory negligence. Chapter 149, § 3, 35 Stat. 65 (U. S. ute enacted for safety of employees contributes to an injury, the injured employee shall not be chargeable with having assumed the risk. Id. § 4 (U. S. Comp. St. § 8660). The court is not aware of any other way in which the Safety Appliance Act may become material in an action predicated on the Employers' Liability Act, and proof of violation of the Safety Appliance Act in such an action does not dispense with proof that the injured employee was engaged in interstate commerce. The result is the judgment may not be upheld under the Employers' Liability Act, because the question whether or not the employee was performing a service connected with interstate commerce when he was killed was not submitted to the jury. The series of acts known as Safety Appliance Acts forms one comprehensive regulation, which thus far in this opinion has been called the Safety Appliance Act. It deals directly with instrumentalities of interstate commerce, and proof that the injured em Texas ployee was also engaged in interstate com- [2] In the case of Schlemmer v. Buffalo, etc., Ry. Co., 220 U. S. 590, 31 Sup. Ct. 561, 55 L. Ed. 596, the court considered the Safety Appliance Acts of 1893, 1896, and 1903 (U. S. Comp. St. § 8605 et seq.), distinguished between assumption of risk and contributory negligence, and held the safety appliance legislation took away from the carrier the defense of assumed risk, but did not affect the defense of contributory negli gence. While an employee does not assume the risk of injury from a car not equipped as the law requires, he is not relieved from taking ordinary care for his own protection in dealing with such a car. This distinction is discussed further in Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. In the case of Minn. & St. Paul Ry. v. Popplar, 237 U. S. 369, 35 Sup. Ct. 609, 59 L. Ed. 1000, the court said the Safety Appliance Act merely defined the duty of the carrier to provide appliances meeting positive requirements, and did not preclude the defense of contributory negligence. In the case of San Antonio Ry. v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110, it was said the Safety Appliance Act leaves the defense of contributory negligence untouched. Until the year 1910 a carrier was subject to penalty for using or hauling a car in interstate traffic, not equipped according to the Safety Appliance Act. By statute taking effect on April 14, 1910 (chapter 160, § 4, 36 Stat. 299 [U. S. Comp. St. § 8621]), it was provided that a car discovered to be defective, which had been properly equipped, might be hauled without penalty to the nearest place where it might be repaired. The statute continued as follows: 7288) of the kind there indicated. Cockrill v. Railway Co., 90 Kan. 650, 136 Pac. 322; State v. Mooney, 93 Kan. 353, 144 Pac. 228; Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151, 43 L. R. A. (N. S.) 1121. [5] An inspector's report on the condition of the car and on certain facts attending the accident, made after the accident, was offered in evidence and rejected. The report fell within the rule of the Burks Case. The inspector testified, however, that the report was absolutely correct, and consequently it might have been admitted, if the plaintiff needed it, as to matters within the inspector's personal observation. [6] The district court was of opinion con "And such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any rem-tributory negligence of the deceased was not edial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to. * The decisions noted, holding that, while the Safety Appliance Act expressly abolished the defense of assumed risk, the defense of contributory negligence remained, did not mention the act of 1910, and no decision of the Supreme Court of the United States interpreting that act has been cited. This court is of opinion the defense of contributory negligence is available as before. The provision that movement of the car to a place of repair shall be at the sole risk of the carrier merely declares that employees concerned with the movement assume no risk. The remainder of the section is interpretative only, and does no more than preserve existing liabilities and remedies for private injuries, unaffected by the fact that the carrier is relieved from the statutory penalty. Since there must be another trial, several subjects deserve attention in order that the district court may proceed properly. an issue, and evidence offered by the defendant relevant to that issue was rejected. There is some indication in the record that the evidence might have been rejected in any event. Therefore it seems proper to say that the provisions of the federal statutes may not be nullified or pared down by rules imposed by a carrier on its employees; but, speaking generally, any printed rules of the yard established by concurrence of both ememployer, any settled usages of the particular oral or written, given to employees, making ployer and employee, and any instructions, for greater safety in handling the bad-order car, brought to the attention of the deceased and violated by him, were admissible. Of course, proof that an unsafe method was preferred, deliberately and without necessity under the conditions, to a safe one, was ad missible. The defendant argues that violation of the Safety Appliance Act was not the proximate the record it would not be profitable to discause of the injury. In the present state of cuss the subject. [7] The defendant says that, assuming recovery to be predicated on the Safety Appliance Act alone, the Workmen's Compensation Act of this state (Gen. St. 1915, §§ 5896–5942), [3] The plaintiff should not have been re- under which the defendant operates, governs quired to elect between the Employers' Liabil- the amount of damages. In the case of Minity Act and the Safety Appliance Act. She neapolis & St. Paul Ry. v. Popplar, 237 U. S. was entitled to go to the jury on as many 369, on page 372, 35 Sup. Ct. 609, on page 610 grounds of recovery as her evidence tended (59 L. Ed. 1000), the court interpreted the to establish, under proper instructions relat-Safety Appliance Act as follows: ing to each ground. servant. [4] The plaintiff offered in evidence copies, "The action fell within the familiar category furnished and certified by the defendant, of of cases involving the duty of a master to his conductors' reports of cars in freight trains, This duty is defined by the common and interchange reports of cars, showing that law, except as it may be modified by legislation. The federal statute in the present case touchthe defective car was loaded with coke and ed the duty of the master at a single point, and, was in course of transportation from McCursave as provided in the statute, the right of tain, Okl., to Kansas City, Mo. The district the plaintiff to recover was left to be detercourt regarded the statement contained in mined by the law of the state." the writings as hearsay, probably under the rule announced in the case of Railway Co. In the more recent case of Texas & P. v. Burks, 78 Kan. 515, 96 Pac. 950, 18 L. R. R. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. A. (N. S.) 231. The reports formed part of 482, 60 L. Ed. 874, the view was expressed the defendant's records of its business, and that the Safety Appliance Act not only imwere admissible under section 384 of the Code poses an obligation, but by implication cre |