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CITY OF ST. JAMES V. STACY.

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(Circuit Court of Appeals, Eighth Circuit. January 10, 1913.)

No. 3,734. 1. MUNICIPAL CORPORATIONS ($ 788*)—SIDEWALKS-DUTY TO MAINTAIN.

A city owes to the traveling public the duty of exercising reasonable care to keep its sidewalks in a reasonably safe condition, but, in order to render it liable for injuries for failure to perform such duty, it must appear that the city knew, or had reasonable cause to know, of the defective condition of the walk for a sufficient length of time before the accident to enable it to put it in repair.

(Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88

1641-16-13, 1646, 1652; Dec. Dig. $ 788.*] 2. MUNICIPAL CORPORATIONS (§ 821*)_DEFECTIVE SIDEWALKS-GBATING-IN

JURY TO PEDESTRIAN-CONTRIBUTORY NEGLIGENCE.

A grating extending nearly across sidewalk was defective in that the edge of one of the sections was elevated above the other where they joined. Plaintiff, & cripple who walked with crutches, was familiar with the grating and with its defective condition. On the occasion of his injury the sidewalk and the adjacent road were icy, and he undertook to cross the grating, in the way he had frequently done before, by getting a solid foothold as he approached it and then stepping or swinging over It on his crutches. In some manner he struck the end of one of his crutches against the elevated edge of one of the sections of the grating and fell and was injured. Held, that he was not guilty of contributory negligence as a matter of law.

[Ed. Note.--For other cases, see Municipal Corporations, Cent. Dig. $8 1745–1757 ; Dec. Dig. $ 821.*]

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In Error to the Circuit Court of the United States for the District of Minnesota; Charles A. Willard, Judge.

Action by Lute A. Stacy against the City of St. James. Judgment for plaintiff, and defendant brings error. Affirmed.

Plaintift below, while walking along on one of the public sidewalks in the
city of St. James, encountered an iron grating extending transversely across
substantially all of the sidewalk. This grating covering a hatchway con-
sisted of two parts or sections, each being hinged to opposite sides of the
opening, and when shut their edges came together near the middle of the
opening so as to form a joint extending practically across the entire side-
walk. In this way it was adapted, if properly constructed, to permit an
uninterrupted and safe crossing by pedestrians. The two sections of this
covering, however, when closed, did not make a good joint; but the edge of one
of them stood an inch or more higher than that of the other, and this con-
stituted such an obstruction in the highway as would naturally trip up a
pedestrian who might, without extraordinary attention, attempt to cross it.

The plaintiff was a cripple and walked with crutches. He was familiar
with this grating and with the defective condition of the joint. In fact, he
had frequently passed over it and had noticed that the edge of one of the
sections was more elevated than the other, but on this occasion the sidewalk
and the adjacent road were icy and slippery, and he undertook to cross the
grating in the way he had frequently done before getting a solid foothold
as he approached it, and then stepping or swinging over it on his crutches-
but in some manner, not necessary to be detailed here, he struck the end of
one of his crutches against the elevated edge of one of the sections of the
grating and fell and received an injury. He recovered a judgment below, and
the city prosecutes this writ of error.
Por other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Edward C. Farmer and Jens L. Lobben, both of St. James, Minn. (W. S. Hammond, of St. James, Minn., on the brief), for plaintiff in error.

J. W. Schmitt, of Mankato, Minn. (H. L. Schmitt, of Mankato, Minn., on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

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ADAMS, Circuit Judge (after stating the facts as above). [1] The city owes to the traveling public the duty of exercising reasonable care to keep its sidewalks in a reasonably safe condition. In order, however, to render it liable for injuries for failure to perform its duties in this regard, it must appear that the city knew, or had reasonble cause to know, of the defective condition of the grating a sufficient length of time before the accident occurred to enable it to put it in a state of repair. The learned trial court submitted this issue to the jur very clearly-certainly in such a way that the city can have no ground of complaint and makes no complaint on this account. The verdict of the jury being against the city necessarily concludes this issue in favor of the plaintiff below and establishes for the purposes of this case the requisite negligence to entitle plaintiff to recover, unless for other reasons he cannot do so.

The stress of the argument at bar and in the brief is that plaintiff was guilty of such contributory negligence as precludes recovery. It is said he was familiar with this raised joint, had often passed over it and necessarily knew its condition, and that the attempt to cross it on the occasion in question was an unwarrantable exposure and prevented recovery, and that the trial court erred in not instructing a verdict for the defendant according to the prayer of defendant's counsel.

[2] We are unable to give our assent to this contention. We cannot now review the correctness of the finding of fact by the jury. Our sole duty is to ascertain whether there was any substantial evidence upon which that finding can be sustained. Of this we have no doubt. A person who was entitled to use the sidewalk, and who might reasonably assume it was in a fairly safe condition for use, came upon the obstruction; the adjacent ground was icy and slippery, and it might well be that the raised joint in the grating presented a less dangerous impediment to his crossing than the icy surroundings would have presented if he had attempted to go out into the street and avoid crossing the grating.

The question is: Did he exercise ordinary care and prudence under all the circumstances in attempting to cross over the grating? In other words, Did he fail to exercise the care and prudence which ordinarily prudent persons would have exercised under similar circumstances? We are unable, in view of all the facts and circumstances in the case, to say as a proposition of law that the plaintiff did not exercise that prudence which ordinary persons would have exercised under like circumstances. Whether he did or not was a question of fact for the jury under proper instructions. This case is quite similar

in its facts to that of Mosheuvel v. District of Columbia, 191 U. S. 247, 24 Sup. Ct. 57, 48 L. Ed. 170.

On familiar principles of general law, reinforced by the authority of the case just cited, we have no hesitancy in affirming the judgment, and it is so ordered.

In re FEDERAL BISCUIT CO.

(Circuit Court of Appeals, Second Circuit. Feb. 10, 1913.)

No. 149.

1. BANKRUPTCY ($ 105*)-PENDING ACTIONS--STAY.

The power to stay actions pending in the state courts against a bankrupt is given only for the benefit of the bankrupt's estate, and, if the estate has no interest in the suit, it cannot properly be stayed.

[Ed. Note.--For other cases, see Bankruptcy, Cent. Dig. $8 156–158, 162; Dec. Dig. $ 105.*] 2. BANKRUPTCY ($ 217*)--ACTIONS IN STATE COURT-ATTACHMENT_STAY,

An attachment suit having been instituted in the state court against a bankrupt within four months prior to adjudication, the attachment was discharged by a surety bond. A director of the bankrupt company to procure the bond executed an indemnity agreement with the surety company, and to secure him against loss the bankrupt conveyed as a part of the same transaction certain real property to be held in trust for him. Held that such conveyance, being in good faith, was neither fraud. ulent nor a preference, and hence, as the prosecution of the attachment suit would operate indirectly as an appropriation of the bankrupt's estate, the trustee was entitled to a stay.

{Ed. Note.--For other cases, see Bankruptcy, Cent. Dig. $8 323, 330, 340; Dec. Dig. & 217.*]

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York; Charles M. Hough, Judge.

In the matter of bankruptcy proceedings of the Federal Biscuit Company. On petition of Edward C. Vick to revise an order enjoining the prosecution of an action supported by attachment in the state court. Affirmed in part.

The petitioner commenced an action in the Supreme Court of the State of New York against the Federal Biscuit Company upon a claim provable in bankruptcy. A warrant of attachment was issued in such action and an attachment made which was discharged by a bond or undertaking given by a bonding company. One Anger, a director of the Federal Company, entered into an indemnity agreement with the bonding company and to secure him against loss the Federal Company conveyed certain real property to be held in trust for him. Within four months after the beginning of the attachment &ction a petition in bankruptcy was filed against the Federal Company and it was adjudged a bankrupt.

An order was entered in the District Court which, among other things, enjoined the prosecution of the action in the state court. To revise such order the present petition was brought. *For other cases see same topic & SNUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

J. M. Gardner, of New York City, for petitioner.

Rosenberg & Levis, of New York City (J. N. Rosenberg and W. J. Barr, both of New York City, of counsel), for respondent.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES, Circuit Judge. [1] The bankruptcy act authorizes the District Court as a court

of bankruptcy to stay suits against the bankrupt founded upon provable claims pending in state courts at the time of the bankruptcy. It also authorizes such stays in attachment actions instituted within four months of the bankruptcy, the lien of the attachment being invalidated thereby. But the power is given in both cases only for the benefit of the bankrupt estate. If the estate have no interest in the suit or action it cannot properly be stayed. As this Court said in In re Mercedes Import Co., 166 Fed. 427, 92 C. C. A. 179:

As the trustee in bankruptcy has no interest whatever in the claim against the surety, we think the creditor's rights and equities are questions to be disposed of by the state court."

[2] In the Mercedes case the facts were somewhat similar to those appearing here. An attachment suit had been brought in a state court against a corporation which subsequently became bankrupt. A bond was substituted for the attachment. The District Court stayed the action but this Court reversed the order upon the ground indicated in the extract quoted, viz: that the bankrupt estate had no interest in preventing proceedings in the state court which looked only to enforcing the obligation of the surety company upon the attachment bond. But in the Mercedes case the attachment was made more than four months before the bankruptcy and, what is particularly important, no property of the bankrupt estate was held directly or indirectly to indemnify the surety. In the present case, on the other hand, the attachment was made within four months of bankruptcy and if Anger has a right to the property transferred for his benefit the trustee has a substantial interest in the attachment action. If the surety company is held it can look to Anger for indemnity and he may avail himself of the property of the estate. Thus if a stay be not granted a suit against a bankrupt on a provable claim brought within four months of bankruptcy may result in a depletion of the assets of the estate—a result clearly in contravention of the purpose of the bankruptcy act.

The appellant seeks to avoid the conclusion stated by urging that Anger has no right to the property held in trust for him; that the arrangement for his benefit is illegal. We think, however, that this contention is not well founded. No positive fraud is shown. There is nothing in the record to show that Anger acted in bad faith in indemnifying the surety company or participated in any scheme to give the plaintiff in the attachment suit a preference. He acted upon a present consideration. The conveyance to him was contemporaneous with his indemnity to the surety company and so far as the record shows it was neither fraudulent nor a preference. McDonald v.

Clearwater R. Co. (C. C.) 164 Fed. 1007; Young v. Upson (C. C.) 115 Fed. 192; In re Wolf (D. C.) 98 Fed. 85.

It follows, then, that as the result of the prosecution of the attachment suit will be the appropriation indirectly of property of the bankrupt estate the trustee is interested in it, and the case is distinguishable from the Mercedes case and is one in which the protection of the estate requires a stay. So much of the order, therefore, as grants a stay will be affirmed. We think this measure of relief all that is called for at the present time and sufficient to determine the rights of the parties. The other portions of the order are, however, set aside without prejudice to further proceedings if necessary. No costs are awarded in this court.

GREATER NEW YORK FILM RENTAL CO. V. BIOGRAPH CO. et al. (Circuit Court of Appeals, Second Circuit. February 10, 1913.)

No. 157, Oct. Term, 1912. INJUNCTION ($ 3*)-RIGHT TO WRIT—CONTRACT.

Where, in suit for conspiracy between defendants to injure complainant's business, it did not appear that defendant B. Company had any contract by which it was bound to furnish complainant with moving picture films for any period of time, complainant was not entitled to a preliminary mandatory injunction restraining the B. Company from refusing to deliver films of its own manufacture as complainant might from time to time order. [Ed. Note.-For other cases, see Injunction, Cent. Dig. $ 3; Dec. Dig. $ 3.*] Appeal from the District Court of the United States for the Southern District of New York; Learned Hand, Judge.

Suit by the Greater New York Film Rental Company against the Biograph Company, impleaded with the General Film Company. From an order granting complainant a preliminary injunction against defendant Biograph Company, it appeals. Reversed.

Leventritt, Cook & Nathan, of New York City (David Leventritt, Harold Nathan, and Franklin H. Mills, all of New York City, of counsel), for appellant.

Rogers & Rogers, of New York City (G. A. Rogers and S. E. Rogers, both of New York City, of counsel), for complainant.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE, Circuit Judge. The complainant is a so-called film rental exchange engaged in the business of leasing motion picture films from the manufacturers thereof and subleasing them to exhibitors. The Biograph Company is engaged in the business of manufacturing motion picture films. The General Film Company is another film rental exchange engaged in the same business as the complainant. The relief demanded in the complaint is that both defendants be enjoined from conspiring and confederating with each other and with other named persons (individual and corporate) to injure or interfere with the business of complainant by causing the supply of films from the *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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