the,. .. Or, in .apy other .WIlY.· is be .enJolDell by a court of equity." of another's * * * in any quite enough to include the act which, in Kitchen to be thellorticle demanded,when for., -MlY act .<;>r done to induce the belief in, f!Jct" tl;ae,other unfairi'aIXd indeed unlawful; and true mt:ja.ninK .,andintentof the.actIJ.ofthe defendant's of. "The. case falls clearly within the principle that equity shquld prevent, a.party, from fraq<lulell,t1y;availing .himself of the trade-mark of another, wqich has already ,obtained currency and value iIi. the market, by wha,tt;'ver means he may'qevise for that purpose. 1'he d,l;'feod!illts had no right to' by word of mouth or by act, :or indirectly, the Kitchen was Bapolio, and yet this .is, 'fhl1t the acts of their llgents amount to.· Such acts should be restrained.. They constitutefalse:representations. which tend to mislead ,Vie public, and divert custoU) fr,om the one manufacturer to the other. l':.et issue, asprayed.1or. The questi\.lu of costs'is reserved. Jusl1y by
,r' .
WARl) .'
1'., . .
(Ctrcuit CouH,I). South Carolina. AUg]ll!t26, RULlW'AD PlaiJ:ltitlattemllted to dllive over defendant's track at a street crossing, without stopping tolQOjt or listen,and was struck by. a passing .train, which be could easily have he went on tbt' track. Th,e train was two hours behind th!l schedl1le.Jtl.me; : PlaintiJr's' Witnesses tellti1ied that they heard the whistle either at a crosail/!f 500 yards distaDt. or at one I),OO.yards. further; while defendant's wit.DeSIle&; pallsengers on the' train, testljied the whistle was sounded at all the crOSBings, and 'the engineer teatlfiedtothe same effect. Held; 'that a verdict in plain. tiff's tavorwould be set aside.. . , ',' , . , ' I . . ' , >
COMPANIES-Acoro'BNTlJA.T CROSSI'NG8.
'
,Benet, It{cP¥:llough &: Wen., &:Qrr, for
New Tna(,
and John G. (hpers, for plaintiff. '
'.'
·
, .. The piEiiojtiff. a far.n;Jer,residinga fewmiles from.Greentook him into that city very frequently, had ville, and ,,,bOse thE! 9Z).Y in town, arid :was returning to his hOtne between 7 and 8 o'clock jq the evening. : He was driving in his ,wagon on West street, one of the streets ,of Gre{:)J::\ville, and was in the act of crossing the track of ,the at theWellt-Street crossing. .A.bQyeij}is place, about 500 yards, is the BuncqFPbe-Street cl'Ossing,and. beyond. tha.tagain is Crossing," sQIPe another crossing generally knOW!) as the 500',yatde!'ratther. Just'asidefendant was in alocomotive train came incollislon with his wagon, him. Oneapproachipg tp,e West-Street
WARD flo' RIcHMOND
III ·
ill. R. CO.
423
crossing can, for 300' yards, get occasiorml views of thlnailroad trac1Hn the direction from. which the train' was approachtng on this occasion; and, for 50 yards from the crossing, the railroad track is visible for over 300 yards, partially obstructed by small bushes. In his examination the plaintiff adtnitted that he had been drinking on that day j and at the time of the accident was neither drunk nor s6ber. He approached, and went on the crossing without looking for, or listening for, anyap" proaching train. The one which collided with him was fI passenger train, two hours behind schedule time. Witnesses for plaintiff, resi.. dent in that locality, heard the whistle of the train ·either at the Mount-< ain-Road cr!>ssing, or at the BuIieombe crossing. Those for the defend·, ant, all of them, but one; passengers on the train intending to get out at Greenville, and that one waitinK for the coming train, say that the whistle sounded fOr all the crossings, followed by the long whistle, for the station, in the act of crossing Buncombe street, and then by the cattlesignal. The engineer, who testified that he. blew aU the crossing signals, said that he saw the wagon of the plaintiff when he was a.bout 65 yards from it; that he blew the cattle signals, and put on his air-brakes, ping his train just beyond the crossing, but too late to avoid The train was well equipped. The case was submitted to the jury, notwithstanding the motion that they be instructed to find for· the defendant. Two questions were subtriitted to them: Was the defendant negli" gent? If this were answered in the affirmative, was there contribiltory negligence on thepll;rt of 'the plaintiff? They were carefully instructed as to the law of the case. There ware no exceptions to the charge. The verdict was for plaintiff, $1,100. :The defendant moves fora new triaL The general rule i('l that every one approaching a railroad crossing. at any time, must exercise ordinary carain the use of his sense of sight and of hearing in order to discover and guard a.gainst any approaching train. See Bea<;h,Oontrib.Neg. p,11J1, § 63, and cases quoted;: Sclwfieldv. Railway Co., 114"U. S. 617,.5 Sup. Ot. Rep. 1125; The statute law of South Carolina 'goes beyond this general rule. It requires a locomotive approachinga.crossi ng liketlie one in this case to ring a' bell or sound the whistle at the distance of at least 500 yards from the crossing, and to keep up the ringing or whi$tling until the locomotive has crossed the highway. Gen.'St. S, O. § 1483. Section 1529 oLthe same chapter provides that, if one b'e injured in persoll or property by collision with the engine a railroad corporation at a'crossing, arid it appears that the corporation neglected to give the signals required by that ter, and' that's#ch neglect contributed tt) the, injury ,the corporation shall he liable for all caused by the collision, unless it be shown that, in addition to merewhnt of ordinary care, the person injunld:was', at the time Of collision, guilty of gross or willful negligence, or' was m!ting unlaWfully, and that such gross or willful negligence,or unlawful act, contributed to the 'injury., 'Under these provisions of the statute law of South Carolina the jury-were instructed to inquireif< the signals, herein provided for, were given. (Their verdict answers this question in the" negatiVe. i. ':They were ,alsO"· instructedito inquire if the plaintiff was
424
IU:POBTEH,
vol. 48.
gtiilty',of"negligence, gros$ or willful, which contributed to the injury. They, were told that these terms were not synonymous; that gross negligence,ifnplied carelessness, witnt of apprehension of danger; willful ligence'was recklessness, notwithstanding knowledge of danger. The Qne is passive, the other active., The verdict answers this in the negative also. If the ,verdict is the solution of conflicting evidence, it not. be disturbed. Our iIlquiry then is, was there enough of un· disputed testimony in the case to induce the conviction that the verdict onthis\point was against the evidence? It is difficult, if not bIe, to formulate a definition which will cover every case of gross negligence., The surrounding circumstances will always control the, chara(}o ter of the act. What might be'only a want of ordinary care 'under some In White v. circumstances would be gross carelessness under Railroddeo., 9 S. E. Rep. 96; the aupreme court of South Carolina say: "Gross negligence is the absence ·of that kind of care which even the most careless and indifferent would be expected to exercise under the existing circumstances." In the case ,before us the plaintiff, after dark, was approaching a railroad crossing with which he was perlectIy acquainted. A train of Clars was rapidly approllGhing. Although. it did not give the continuous signal required by statute, it did give notice of its approach. The, witnesses for plaintiff·hell.rd it .whistle, either at the Mountain·Road crossing of at the Buncombe-Street crossing. Those for the defendant heard it whistle at both of crossings, and then give the long whistle for the station. The first set of witnesses were residents of the locality, with no special jnterest in the arrival of the train. The other set were specially interested in the approach and arrival of the train at Greenville, flmt,.moreon the alert: for the signals. Notwithstandingthis, the plaintiff continued on his course" on the track, and was crossing it when the train was a little over 65. or '/0 yards off,.nnd easily visible, certainly, from that diijtance, taking nO sort of precaution, using neither his eyes nor his ears. ,Had he listened, he must have heard the whistle, or the toar of.the coming train. .Had he looked, he must have seen its lights. It is impossible to avoid the .con;viction that, although he was neither drunk nor sober, nevertheless. the drinks he had taken. had induced a frame of mind which made him "careless and indifferent to cons,equences," and had led to "the absenCe of the oare which a sober man, liOwever careless and indifferent, would have exercised under the cilcumstances." Had he .used his senses, he could have stopped. In not stopping, he contributed to his injury. The jury was fully advised as to the principles of; law· to Which these facts would apply.' Their verdict wOlild indicate either that they mistook the principles or that, through bias or prqjudice, theyniisapplied them. The frank admission by the plaintiff of the controlling fact that, in the act of crossing, he 11sed. neither his sight not his hearing was entirely overlooked by the jury. Their verdict cannot stand. Thurston v. Martin, I) Mason. 497. ':Phe case of Petrie v. Railrc,ad Co., 29 S. C. 303,7 S. E. Rep. 515,resem. bling ,this<Jase so much in jtstRcts, does not conflict with this opinion. mhe suprem.e,court do tlllltgoing upon a
MITCHELL t7. MURPHY·
425
.ered up as to render hearing or sight impossible would be gross tributary negligence. The error for which they sent the case back waf! the expression by the circuit judge of his opiI\ion on the facts; the rule in this state being that a judge cannot, by word, and perhaps by voice or gesture, by countenance or emphasis, aid the jury in their exclusive province,-the decision on the facts. In Schofield v. RailWllY 00., supra, the supreme court of the United States sustained the trial judge in his instruction to the jury to find for the defendant, under very similar to those of the case at bar. Enter an order for a new trial.
MITeJRELL
et al.
t1. MURPHY.
(Citrcuit Court, W. D. Penns1/lvania. August 5, 1890.)' 1. TRUSTS-IMPLIED TRUSTS.
A deed frpm Bo'. M., and P. to Joseph Pennock for a tract of land oontaiped the recital: "And wbereas, the said land is intended to be for a residence for Will, iam Murpbyand his family, and the said Joseph Pennock pays towltrdsthe chasemonw 11,200. and Isaac M. Pennock * * * pays 1500, and Arehibald Paull. ·. pays $500." Tbe conveyance was to Josep1;l Pennock, "in trust; ail well for the said Isaac M. Pennock and Archibald Paull as for. himself, in the proportions the amount paid by each bears to the whole purchase money." These persons put· Murphy into possession for no defined period. Held, that there was nb implied trust in favor of William Murphy and bis family, and his poslI6l1Bionwail that of a mere tenant at will. Murphy,with bis family, remained in possession of the land until his death,anp tbereafterhiswidowcontinued in possession for more than 21 years. HeW that,'as bel' hus!:l.and's possession was in subordination to the title of the rightful ownerS, her continued possession was of the same character, and that. in the absence of evidence that she had renounced the privity between her and the rightful owners, or.bysomeunequivocal act had severed it, she could not avail herself of the statute of limitations. ·
B.
ADVERSE J:'OSSESSION.
Ejectment. In pursuance of a written stipulation this case was tried by the court 'without the intervention of a jury. The following facts, therefore, arefound by the court: . . (1) The title to the piece of land described in the writ in this case being in Isaac Beeson. George Meason, and Charles Peach, these persons, by their deed dated March 27, 1851, for the stated consiQeratioll of $2,200 therein acknowl... edged as haTing been paid by Joseph .Pennock, Isaac M. Pennock, and Archibald Paull, conveyed said pil'ce of land to said Joseph Pennock in trust as follows. namely: .. To have and to hold the same, with the appurtenances thereunto belonging. unto him, the said Joseph Pennock, his heirs and assigns, . in trust, as well for the said Isaac M. Pennock and Archibald Paull as for himself. in the proportions the amount paid by each bears to the whole purehase monl'y." The said deed, after redting the chain of title from the commonwealth of Pennsylvania down to said Peal,h to several tracts of land lif which the piece here in question is a part, contains this recital jnst before th(:l" cOllv.eyingclause, namely: "And whereas, the said Peach has sold fifty of the same to Joseph Pennock, of the city of Pittsburgh, in trust, as herein")fter stated: and whereas, the said land is intended to be for a residence fot