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D. C.]

Dissenting Opinion.

When the coupling failed, he signaled the train forward a sufficient distance to permit him to go in and adjust the knuckle, and he could have stepped across the girder on to the adjoining track again before signaling the engineer to back up the train. He could have repeated this until the coupling was made. We must assume that this was a usual method of coupling, since plaintiff, when complying with the order of his superior in the first instance, adopted it. No witness has testified that it was not proper. On the contrary, the conductor in charge of the train at the time of the accident testified "that in making the couplings the men go in to where the cars stand, and set the couplings, and they can then either stay inside between the girder and the cars, or come out on to one of the other tracks, or they might climb out on top of the girder."

Plaintiff, on the other hand, had open to him the method which the testimony of his fellow employees conclusively shows to have been followed not only by other brakemen and switchmen, but by plaintiff himself,-to stand on top of the girder while the cars were coming together to effect a coupling. The conductor, as above quoted, testified that the men in making the coupling "might climb out on top of the girder," and, on cross-examination, "that he had quite frequently seen men on top of the girder when at work making coupling on the bridge." The engineer in charge of the engine when plaintiff was injured testified "that he had known Duvall as a railroad man for five or six years, ever since the high line had been operated, and the conditions of the line and the bridge had been the same during that time; that he sees men on top of the girder when they give signals about shifting, every time they couple cars; that he had seen Duvall on the girder, but could not remember whether he saw him on the girder on the day he was injured; and he has frequently seen brakemen stand on the girder during coupling operations, and nothing could reach them there." An extra brakeman testified "that he had seen men in making couplings on the bridge get up on top of the girder, and also had seen them stand between the car and the girder."

Thus it will be observed that three ways were open to plain

Dissenting Opinion.

[43 App.

tiff, two of which, at least, were perfectly safe. Much is made in the opinion of his being required to operate the lever at the end of the car when the coupling was being made. He was not required to do so in the first instance when he stood on the adjoining track, and there is not even an intimation in the evidence that any such requirement existed. But if it did, the lever could have been operated as easily and as effectively from the top of the girder as from the ground. But it is asserted that others had coupled cars from the position assumed by plaintiff, and no accident had occurred; therefore he was justified in assuming that the place was safe. In other word if six employees in the performance of a duty assigned them assume a careless, negligent, and unnecessary position, and escape injury, the employer would be liable for injury to the seventh because of the successful escape of the six. This illustrates the absurdity of the logic. If there was anything in the contention, the successful escape of the six would justify the employer in assuming that the place was safe. But the reasoning reaches neither the employer, the employee, nor anyone else. We have plaintiff, with his eyes open, selecting a dangerous place to perform the duty assigned him, when a safe place was but a step away, and by his gross negligence inviting injury. If, as urged, the width and height of the garbage car made the place dangerous, the danger was so apparent that, in the exercise of reasonable care, he ought to have observed it. His gross carelessness in this particular is not an open ques

tion.

Plaintiff has tendered no issue of fact for defendant to answer. While the jurors are the duly appointed triers of facts, and cases should not be withdrawn from their consideration except for good cause, the court should not permit them, in disregard of all rules of legal procedure, to indulge in mere speculation and reach a verdict induced by sympathy or prejudice. Where the testimony submitted can legally lead to but one result, there is no question for the jury, and the judge, in the proper discharge of his duty, should withhold the case. "The judge is primarily responsible for the just outcome of

D. C.]

Dissenting Opinion.

the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who, in our jurisprudence, stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, and when, in his deliberate opinion, there is no excuse for a verdict save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment." Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275.

Commenting upon the wide and extensive scope of judicial discretion, Mr. Justice Robb, in Capital Traction Co. v. Brown, 29 App. D. C. 473, 12 L.R.A. (N.S.) $31, 10 Ann. Cas. 813, taking judicial cognizance of the negligence of the railway company, said: "Their dereliction in failing to provide adequate accommodations for their passengers is so generally known that courts will take notice of it, for, while theoretically justice is blind, practically justice is ever alert, watchful, and progressive." On plaintiff's own testimony justice must be more than theoretically blind; its eyesight is woefully defective when it fails to observe the approaching garbage car. Even excusing plaintiff's presence in the place where he was injured, the situation depicted by the record is so obvious that whether plaintiff ought to have observed it is a question of law for the court, and not a question of fact for a jury.

As stated at bar and in brief of counsel, this case was instituted in the belief that the defense of assumed risk had been denied defendant in the employers' liability act. But in Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, the court held that the act had left the common-law doctrine of assumed risk intact. What Congress refused to do, however, has been effectually accomplished in this District by the opinion in this case. A precedent has been established which will lead to increased litigation in a branch of the law already overworked in this jurisdiction. Whatever conclusion a jury, specu

Syllabus.

143 App.

lating in the realm of sympathy and prejudice, may reach in this case, there remains but one legal and just judgment,— that reached by the learned trial justice, which should be affirmed.

UNITED STATES OF AMERICA EX REL. MICKADIET v. LANE.

INDIANS; OFFICIALS; SECRETARY OF THE INTERIOR; RES JUDICATA; ESTOPPEL; EQUITY; CLOUD ON TITLE.

1. Under the act of Congress of June 25, 1910 (36 Stat. at L. 855, chap. 431, Comp. Stat. 1913, sec. 4226), authorizing the Secretary of the Interior to ascertain the legal heirs of a deceased Indian allottee of land who has died intestate, and providing that the Secretary's decision "shall be final and conclusive," the Secretary has no right to ignore the legal heirs, and decide in favor of a collateral heir or a stranger in blood, as such a decision would be arbitrary and capricious; but the statute merely clothes the Secretary with jurisdiction to identify the legal heirs, and in so doing he is as much bound by the laws of descent of the jurisdiction where the land is located as would be any other tribunal.

2. Where, after the Secretary of the Interior in a controversy between the adopted children of a deceased holder of trust patents under the act of Congress of February 8, 1887, (24 Stat. at L. 388, chap. 119, Comp. Stat. 1913, sec. 4195), and his natural heirs, found that the adoption was legal, and that the adopted children were the legal heirs of the decedent, the adopted children petitioned the Secretary, under the provisions of the acts of Congress of May 8, 1906 (34 Stat. at L. 182, chap. 2348), and June 25, 1910 (36 Stat. at L. 855, chap. 431, Comp. Stat. 1913, sec. 4226) to issue them patents in fee simple on the ground that they were competent to manage their own affairs; whereupon one of the natural heirs protested against the issuance of such patents, and also filed a motion for a review and reconsideration of the Secretary's former decision, on the ground of newly discovered evidence tending to show that the decree of adoption was void for fraud, and the Secretary decided he had jurisdiction to reconsider his former decision, and ordered the withholding of payment of funds

D. C.]

Statement of the Case.

accrued or deposited to the credit of the adopted children since the pendency of the motion for reconsideration; it was held in a suit in equity by the adopted children against the Secretary, that the natural heirs, claiming as they did under the adoptive parent, were estopped to attack the decree of adoption which he had procured; also that the Secretary was without jurisdiction to reopen his first decision in the absence of any claim that it was procured by fraud, as the act of Congress of June 25, 1910, giving him the right to determine who were the legal heirs of the deceased allottee, provided that his decision should be final and conclusive, and as there was no statute or rule of the Department providing for a rehearing of such cases; and that a court of equity had urisdiction to compel the Secretary to recognize and enforce his first decision, as the adopted children were the legal heirs of the allottee, and, as such, equitable owners of the allotments, and a readjudication of the question of their heirship would involve them in unnecessary trouble and expense and cast a cloud upon their title.

No. 2762. Submitted February 5, 1915. Decided April 5, 1915.

HEARING on an appeal by the plaintiffs from a decree of the Supreme Court of the District of Columbia, sitting as an equity court, dismissing a bill to require the Secretary of the Interior to cause to be paid to the plaintiffs the accumulated rents and profits of certain Indian lands, and directing him to carry into effect a former decision by him relating to the right of the plaintiffs in such lands. Reversed.

The COURT in the opinion stated the facts as follows:

This is an appeal from an order in the supreme court of the District dismissing appellants' petition.

Section 5 of the act of February 8, 1887 (24 Stat. at L. 388, chap. 119, Comp. Stat. 1913, sec. 4195), entitled "An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations," etc., reads in part as follows:

"That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States

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