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Opinion of the Court.

The defences presented were three: First, the receivers were guilty of no negligence; second, even if they were, plaintiff was guilty of contributory negligence; and, third, whatever negligence there was, if any, was that of a fellowservant. The trial court directed a verdict for the defendants on the ground of contributory negligence. Much might be said in favor of each of the three propositions advanced by the defendants. We rest our affirmance of the judgment upon the grounds that under the circumstances there was no negligence on the part of the defendants, and that the accident occurred through a lack of proper attention on the part of the plaintiff.

There is little dispute in the testimony, and the facts, as disclosed are plainly these : The Delray yard is in the western part of the city of Detroit. In it were twelve tracks and sidetracks, and the yard was used for the making up of trains. A switch engine was employed therein, and, as might be expected, was constantly moving forwards and backwards, changing cars and making up trains. Plaintiff was a repairer of tracks. He had been employed there about eighteen months, and was familiar with the manner in which the work was done. The yard was about a quarter of a mile in length. The tracks were in a direct line east and west, with nothing to obstruct the view in either direction. At the time of the accident plaintiff was working near the west end of the yard, when a switch engine pushing two cars moved slowly along the track upon which he was at work, the speed of the engine being about that of a man walking. Plaintiff stood with his back to the approaching cars, and so remained at work without looking backward or watching for the moving engine until he was struck and run over by the first car.

Upon these facts we observe that the plaintiff was an employé, and, therefore, the measure of duty to him was not such as to a passenger or a stranger. As an employé of long experience in that yard, he was familiar with the moving of cars forward and backward by the switch engine. The cars were moved at a slow rate of speed, not greater than that which was customary, and that which was necessary in the

Opinion of the Court.

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making up of trains. For a quarter of a mile east of him there was no obstruction, and by ordinary attention he could have observed the approaching cars. He knew that the switch engine was busy moving cars and making up trains, and that at any minute cars were likely to be moved along the track upon which he was working. With that knowledge he places himself with his face away from the direction from which cars were to be expected, and continues his work without ever turning to look. Abundance of time elapsed between the moment the cars entered upon the track upon which he was working and the moment they struck him. There could have been no thought or expectation on the part of the engineer, or of any other employé, that he, thus at work in a place of danger, would pay no attention to his own safety. Under such circumstances, what negligence can be attributed to the parties in control of the train or the management of the yard ? They could not have moved the cars at any slower rate of speed. They were not bound to assume that any employé, familiar with the manner of doing business, would be wholly in different to the going and coming of the cars. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion. The

person

in direct charge had a right to act on the belief that the various employés in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach. The engine was moving slow .

, so slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the approach of the cars, and enabled him to step one side as they moved along the track. It cannot be that, under these circumstances, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants, and if by any means negligence could be imputed to them, surely

Statement of the Case.

the plaintiff by his negligent inattention contributed directly
to the injury
The judgment was right, and it is

Affirmed.

MILLER V. AMMON.

FOR THE

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

SOUTHERN DISTRICT OF IOWA.

No. 283. Argued April 11, 12, 1892. - Decided May 16, 1892.

The Supreme Court of Illinois having held that the ordinance of the city of

Chicago that “no person, firm or corporation shall sell or offer for sale any spirituous or vinous liquors in quantities of one gallon or more at a time, within the city of Chicago, without having first obtained a license therefor from the city of Chicago, under a penalty of not less than $50 or more than $200 for each offence,” is valid, this court follows the ruling of that court; and further holds that a contract made in violation of it

creates no right of action which a court of justice will enforce. The general rule of law is, that a contract made in violation of a statute is

void ; and that when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover.

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1

On March 16, 1887, the plaintiff in error, defendant below, then a citizen and resident of Wisconsin, purchased of the plaintiff, in Chicago, 1125 gallons of sherry wine, and 1100 gallons of port wine, at an agreed price of $5287. The purchase was on ninety days' credit, and the wine was delivered to defendant in that city. Thereafter the defendant having failed to pay for these goods, plaintiff commenced this action in the Circuit Court of the United States for the Southern District of Iowa to recover the purchase price. The defendant pleaded as a defence, that by chapter 24 of the Revised Statutes of Illinois of 1882 it was provided that: “The city council in cities .. shall have the following powers:

To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in

Opinion of the Court.

which it shall be granted, and to determine the amount to be paid for such license;" that this statute was in force at the time of the alleged purchase ; that Chicago was a city of that State; that the city council of that city had passed the following ordinance:

“ An ordinance concerning the licensing of wholesale liquor dealers.

“Sec. 1. No person, firn or corporation shall sell or offer for sale any spirituous or jinous liquors in quantities of one gallon or more at a time, within the city of Chicago, without having first obtained a license therefor from the city of Chicago, under a penalty of not less than $50 or more than $200 for each offence. But no distiller who has taken out a license as such, and who sells only distilled spirits of his own production at the place of manufacture, shall be required to pay the license herein prescribed on account of said sale.

SEC. 2. All such licenses shall be issued in accordance with the general ordinances of the city governing licenses, and for every such license there shall be charged at the rate of $250 per annum ;” that plaintiff was then a wholesale liquor dealer in the city of Chicago; that he was not a distiller, and had not a distiller's license; that the wine mentioned in the petition was vinous and intoxicating liquor, within the meaning of said ordinance; and that the sale of the wine mentioned was in violation of said law and ordinance. A demurrer to this answer was filed, and, after argument, was sustained; and the defendant electing to stand by his answer, judgment was rendered against him for the amount claimed in the petition. To reverse such judgment the defendant sued out this writ of error.

Mr. C. C. Cole for plaintiff in error.

Mr. Louis J.

Mr. Edgar C. Blum for defendant in error. Blum was on the brief.

Mr. JUSTICE BREWER delivered the opinion of the court.

Two questions are presented: first, is the ordinance valid i

Opinion of the Court.

second, if so, can the plaintiff recover for liquor sold in violation of its terms?

T'he first question must be answered in the affirmative. The precise question, on the very ordinance, was presented to the Supreme Court of Illinois, and determined by it in the case of Dennehy v. Chicago, 120 Illinois, 627. Counsel for defendant in error strenuously insist that that decision is not controlling on this court in this case, because it was not announced until May, 1887, and after this purchase had taken place. They say that this is a controversy between citizens of different States, in which the parties have a right to the independent judgment of the Federal tribunals; that, prior to such decision, there had been no determination by the courts of Illinois of the validity of the ordinance; and that the decision in the Dennehy Case was in disregard of the general course of the legislation of the State of Illinois in respect to the liquor traffic, and of the spirit of at least two decisions of that court, Strauss v. Pontiac, 40 Illinois, 126, 301, and Wright v. The People, 101 Illinois, 133. They refer us to the cases of Pease v. Peck, 18 How. 595; Chicago v. Robbins, 2 Black, 418; Butz v. Muscatine, 8 Wall. 575; Burgess v. Seligman, 107 U. S. 20; Carroll County v. Smith, 111 U. S. 556; Gibson v. Lyon, 115 U. S. 439; and Anderson v. Santa Anna Township, 116 U. S. 356, as instances in which this court did not consider itself concluded by the decision of the state court.

While not disposed to limit or qualify in any respect what has been said so frequently as to the right and duty of independent judgment, we think that this is a case in which the decision of the Supreme Court of Illinois should control. The question is one of a particularly local character, affecting solely the internal police of the State, in respect to which we have no reviewing power, and in which is involved no matter of a Federal character, or of general commercial law. The question as to what licenses shall or shall not be required of those who engage in the liquor traffic, is a matter properly submitted to the States for determination. There is no natural or Federa! right claimed to have been trespassed upon by this ordinance, and the regulations as established and upheld by

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