600

FEDERAL REPOBTBB.

resulting from a. crime committed by their own customer in conducting the enterprise in which both were interested, because the company fail to suspect that the customer would commit a. felony, and did not take precautions to prevent it, is to push the liability of a common carrier beyortd that authorized by any adjudicated case, or by reason or justice. The plaintiffs trusted to:Johnson to send them fair and honest bills of lading. It was they who confided in him. If he has defrauded them, they must look to him, and cannot ·shift the responsibilityupon another party, which has Men guilty of neither crime nor fraud, n6:r of any such negligence as oan be considered the cause of their loss. Lastly': The damage sustained by plaintiffs must be attributed to the proximate and not to the remote Their loss was the direct result of the forgery committed by Johnson. Even on the theory of the plaintiffs, the negligence of the defendants preceded the forgery by Johnson and·sfforded·the facilities for committing it. The plaintiffs cannot, therefore, charge their loss to the negligence of the. defendant, which is the remote, and pass over the forgery of Johnson, which is its proximate cause. Knoxville Nat. Bank v. Clarke, 51 Iowa, 254; Cuff v. Newark It N. Y. R. Co. 85 N. J. (L. R) 1; Byles, J., in Richardson v. Duinn, 8 B. (N. 8.) 665; Denny v. N. Y. Cent. R.Oo. 13 Gray, 481; Morrison v. Davis, 20 Po.. 171; Railroad Co. v. Reeves, 10 Wall. 176. We are of opinion, therefore, that the facts stated in the complaint do not constitute a cause of action in favor of the plaintiff against the defendant. The demurrer must therefore be sustained.

MILLER

v.

UNION PAOIFIC

Ry.

(OircuiC (Jou,rt, D. OolO'l'ado. June, 1882.)

1.

NEGLIGENCE-CoNTRmUTORy-M.A8TlIlR AND SERVANT.

If a master or another servant, standing towards the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger, and he obeys and is thereby injured, the Jaw will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. 2. SnlE.......A QUESTION OF FACT. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence,it must be left to the jury.

MILLER VA UNION P ACIFIO BY.

QOI

On Demurrer. L. S. Dixon and G. H. Gray, for plaintiff. Willard Teller, for defendant. MCCRARY, C. J. The complaint avers, among other things, the following facts:
Fi1·st. That the defendant contracted with plaintiff fQr his services as a carpenter to work at his trade for defendant, and that by the terms of the contract plaintiff was to report to and work under the orders and instructions of a foreman employed by the company to superintend and oversee the carpenter work of said company at a certain coal mine, situated on a branch line of defendant's railroad in Elbert county, Colorado. Second. That plaintiff was directed to and did proceed to said coal mine, and tbere reported toone Miles McGrath, the foreman of said company, there engaged in the superintendence. and oversigpt of the carpenter work of said company at said coal mine, and who was also, in like manner, a foreman of said company to superintend, oversee, and perform work for the company, witb carpenters under him, at other places, as he might be from timet<> time directed by the company. Third. That by said contract plaintiff was to continue in the service or employment of said company until he should voluntarily .:withdraw ·from the same, or until he sho,uld be discharged from the same by order or direction of' the said foreman, Miles McGrath. . Fourth. 'rbat plaintiff entered upon service in pursuance of the contract, and commenced work under the orders of said McGrath, and so continued until January 19, 1880, when he was injured as in the complaint-stated. Fifth. That the company had, npon its said branch line, a certain fourwheeled' platform car, commonly denominated a "push-car," which was wholly unprovided with any machinery or other meChanical means of propulsion or movement, and was designed to be and was moved and propelled along the track by the hands of laborers or men walking behind and pushing the same, except at those places where by the downward grade or descent of the track the same would be moved and carried along by the law of gravitation. Sixth. The said car was provided with no brakes or other means of checking its speed when in motion. Seventh. That said car bad been and then was in frequent and common use by said company, in the departments of repair and construction of said company, upon said branch road and upon a certain section of the main line, and was furnished by said company to be so used, in the movement and transportation of tools and materials,and, as occasion might serve or require, of laborers and workmen upon and along said branch road and a portion of said main line. Eighth. That on two occasions plaintiff 'had ridden upon said car, the same being propelled by hand from the station to said coal mine. Ninth. That, as plaintiff has since been informed and believes, push-cars designed· and furnished to be used as above described, when they are to be used upon steep grades, are usually furnished with brakes, and that the grade upon the branch aforesaid was steep and heavy.

FEDEBAL BBPOBXEB.

Tenth. That on the nineteenth of January, 1880, the foreman above named received a telegraphic order from the defendant company to take the carpenters so at work under him, being three in number besides plaintiff, and proceed with them, by the next eastern-bound train over said company's main line, to a station called Cheyenne Wells, distant about 100 miles, there to perform certain carpenter work for the company. Ble'Oenth. That thereupon said foreman caused the said push-car to be taken to the; coal mine, and being there present in a position of authority, ordered the' plaintiff and the other carpenters in great haste to pick up and pack their 'tools; bedding, blankets, etc., and put the same on the push-car, for transportation, and also ordered the plaintiff and two of bis companions to get, upon said car, which order they obeyed; and thereupoll the foreman himself got upon said car and started it down the grade, w.itha view to reaching the station in time for the east-bound train. The car being heavily loaded; and having no appliances to control its velocity, soon acquired a great and dangerous rate of speed, and was approaching the station, where, by collision with other objects :on the track, there was great danger to the persons on board. To avbidthis greater dang('l'l' the plaintiff jumped from the car and was injured. Twelfth. That plaintiff was not familiar with the manner of using and operating 'pUSh-cars, and fully believed it was safe for him to obey the order of the foreman and get upon said car.

The contention of the counsel for the defendant is that the complaint shows upon its face that plaintiff was guilty of contributory negligence. That the act of going upon the push-car, loaded as it was, and proceeding down a steep grade without the means of retarding or stopping its movement, was an act of negligence, is clear. Miller v. Union P. R. Go. 4 FED. REP. 768. This is not denied, but the plaintiff insists that the allegations of the present complaint, taken to be true, ,show that the negligence which caused the injury was wholly the negligence of the defendant company. In determining tbis question we are to assume for the present that the company furnished the push.car to be used, among otber things, for the pur. pose of transporting workmen to and from their work; that it had been used for that purpose; that the foreman, McGrath, had authority to order and direct the plaintiff to go upon it, which order he was bound to obey, upon peril of dismissal from the service; and that plaintiff was unfamiliar with the operation of such car, and ignorant of the fact that the car was :without brakes or other means of controlling its movement. Under such circumstances can it be said, as a matter of law, that he was guilty of negligence in obeying the foreman's order to go upon the car? We think not. The true rule is, that if a master or another servant, standing toward the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger, and he obeys and is thereby injured, the

SELVAGE

v.

JOHN HANOOCK MUT. LIFE INS. CO.

603

law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. 2 Thompson, Negligence, 914-6. , There may be cases in which a court can say, as matter of law, that a servant receiving an order from his master, or from a superior) is guilty of negligence in obeying it, but ,the present is not such a case. The law will rarely declare the act of obedience negligence per se. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence, it must be left to the jury. Lalor v. Railroad Co. 52 Ill. 401; O'Neil v. Railroad Co. 9 FED. REP. 331. The demurrer to the complaint must be overruled,and it is accordingly so ordered.
See Hough v. Texas & Pac. R. 00.11

FED.

REp. 621, note.

SELVAGE

v.

JOHN HANOOOK MUT. LIFE

INs. Co.

(Circuit Court, E. D. NetD York. June 17,1882.)
LIFE INSURANCE-TENDER OF PREMIUM-FORFEITURE FOR NON-PAYMENT.

In an action on a policy of life insurance to recover the amount of the policy on the death of the insured, the company cannot set up in defence a forfeiture of the policy by failure to payor tender the premium on a particular day named in the policy, where the policy-holder was misled as to the day of payment and tender by information derived from the duly-authorized agents of the company, whereby tender was not made till after such date.

Estes tt Barnard, for plaintiff. Blatchford Seward and Griswold

tt

Deco8ta, for defendant.

WHEELER, D. J. This is an action upon a policy of life insurance, and has now, after verdict for the plaintiff and before judgment thereon, been heard upon a motion of the defendant for a new trial. The policy provided for the payment of a premium at the office of the company, "or to their agents producing the receipt of said com· pany," on or before the thirteenth day of July in every year during the continuance of the policy; that if any premiums should not be paid on or before the day when due, the policy should thereupon become forfeited and void, except as provided by the non-forfeiture law of Massachusetts; and that no person except the president or secre-