tion to the jury upon the subject of dam- | U. S. 571, 34 L. ed. 241; Texas & P. R. Co. v. ages, which does not become material here. Cody, 166 U. S. 606, 41 L. ed. 1132. Plaintiffs recovered a verdict, upon which Contributory negligence of the party injudgment was entered for $9,000. The judg-jured would not prevent him from recovering ment was affirmed on writ of error by the cir- if the defendant might, by the exercise of reacuit court of appeals for the ninth circuit, sonable care and prudence, have avoided the one judge dissenting. 48 U. S. App. 757. consequences of plaintiff's negligence.

Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Inland & 8. Coasting Co. v. Tolson, 139 U. S. 551,35 es in the neighborhood tending to show that There was testimony from several witnessL. ed. 270; Texas & P. R. Co. v. Volk, 151 U. no whistle was blown by the engineer as the S. 73, 38 L. ed. 78; Texas & P. R. Co. v. Gen- train approached the crossing. There was try, 163 U. S. 353, 41 L. ed. 186; Indianapo- also the testimony of the conductor, engilis & St. L. R. Co. v. Horst, 93 U. S. 298, 23 neer, and fireman that the whistle was L. ed. 900. blown. As the majority of plaintiffs' witAs a general rule the question of contrib-nesses were so located that they would probutory negligence is one for the jury.

ably have heard the whistle if it had been

Washington & G. R. Co. v. McDade, 135 blown, there was a conflict of testimony with

N

respect to defendant's negligence which was
properly left to the jury.

ceased took any precaution before crossing
the track.

ing by a gradual decline, the length of which was from 130 to 150 feet. Along the greater portion of this distance the view of a train approaching, either from the north or the south, was cut off by the banks of the excavation on either side of the highway; but at [882]a distance of about forty *feet before reaching the track the road emerged from the cut, and the view up the track for about 300 feet was unobstructed.

The real question in the case was as to So far, then, as there was any oral testithe contributory negligence of plaintiffs' in- mony upon the subject, it tended to show testate. For several hundred feet on either that the deceased neither stopped, looked, nor side of the highway crossing there was a cut listened before crossing the track, and there of about eight feet below the surface of the was nothing to contradict it. Assuming, surrounding country, through which the rail- however, that these witnesses, though unconway ran. The highway approached the cross-tradicted, might have been mistaken, and that the jury were at liberty to disregard their testimony and to find that he did comply with the law in this particular, we are confronted by a still more serious difficulty in the fact that if he had looked and listened he would certainly have seen the engine in time to stop and avoid a collision. He was a young man. His eyesight and hearing were perfectly good. He was acquainted with the crossing, with the general character of the country, and with the depth of the excavation made by the highway and the railway. The testimony is prac tically uncontradicted that for a distance of forty feet from the railway track he could have seen the train approaching at a distance of about 300 feet, and as the train was a freight train, going at a speed not exceeding twenty miles an hour, he would have had no difficulty in avoiding it. When it appears that if proper precautions were taken they could not have failed to prove effectual, the court has no right to assume, especially in face of all the oral testimony, that such precautions were taken. The comments of Mr. Justice Field in Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697, 702 [24: 542, 544], are pertinent in this connection: "Negligence of the company's employees in these particulars" (failure to whistle or ring the bell) "was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of cul-[384] pable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to cross the track, instead of waiting for the

train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant."

dence of the three witnesses entirely, there If, in this case, we were to discard the eviwould still remain the facts that the deceased approached a railway crossing well known to him; that the train was in full view; that, if he had used his senses, he could not have failed to see it; and that, notwithstanding this, the accident occurred. Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look; or if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence.

At the time of the accident, Freeman was driving along the highway, going eastward from the town of Elma in a farm wagon drawn by two horses at a slow trot. He was a man thirty years of age, with no defect of eyesight or hearing, and was familiar with the crossing, having frequently driven the same team over it. The horses were gentle and were accustomed to the cars.

The duty of a person approaching a railway crossing whether driving or on foot, to look and listen before crossing the track, is so elementary and has been affirmed so many times by this court, that a inere reference to the cases of Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697 [24: 542], and Schofield v. Chicago M. & St. Paul Railway Co. 114 U. S. 615 [29: 224], is a sufficient illustration of the general rule.

There were but three witnesses to the accident. Two of these were women who were walking down the highway, and approaching the crossing on the opposite side, facing the team. At the time the deceased was struck by the train, they were from 200 to 250 feet away. They testified that the horses were coming down at a slow trot, not faster than a brisk walk, and that their speeed was uniform up to the time of the accident; that the deceased looked straight before him, without turning his head either way; that the team did not swerve but trotted directly on to the crossing, and that the deceased made no motion to stop until just as the engine struck him. The other witness was a little girl, ten years of age, who was standing on the hill on the opposite side of the track, near the point where the descent of the highway into the cut began, and was consequently from 130 to 150 feet from the railway track. The deceased passed her and two other young children who were with her. She testified that as he passed his head was down, and he was looking at his horses; that "they went down aways, and then they run and flew back;" that they were going at a slow trot; that when Freeman saw the train he tried to [383]pull the horses around, as *if he were trying to get out of the way, when the train struck them.

Another witness was driving behind the team, but he testified to nothing which bore apon the material question whether the de

Messrs. Charles W. Russell and John

Mr. Edgar Wilson for appellee.

*Mr. Justice White delivered the opinion[385) of the court:

The United States alleged in its bill substantially as follows:

The cases in this court relied upon by the plaintiffs are all readily distinguishable, K. Richards, Solicitor General, for appellant. either by reason of the proximity of obstructions interfering with the view of approaching trains, confusion caused by trains approaching simultaneously from opposite directions or other peculiar circumstances tending to mislead the injured party as to the existence of danger in crossing the track. That in July, 1864, in Boise county, terriUpon the whole, we are of opinion that the tory of Idaho (now Ada County, state of testimony tending to show contributory neg-Idaho), a tract of land was duly set aside as a ligence on the part of the deceased was so military reservation for the establishment of conclusive that nothing remained for the a military post, and that the reservation was jury, and that the defendant was entitled to subsequently occupied as such post and so an instruction to return a verdict in its fa- continued to be used by the government of vor. The disposition we have made of this the United States, for the purpose in quesquestion renders it unnecessary to express tion, up to the time when the bill was filed. an opinion upon the instruction as to dam- It was alleged, moreover, that flowing across the reservation was a stream of water known as Cottonwood creek, which was non-navigabut which afforded "an ample supply for the agricultural, domestic, and practical purposes of the officers and troops of said military post, and no more, and that said stream of water, together with all the uses and privHar-ileges aforesaid, belong to and are the property of plaintiffs; and that from the time of the occupancy and location of said post, to wit, the month of July, A. D. 1864, the waters of said stream have been continually used and appropriated, and now are used and appropriated, for all *agricultural, domestic, and[386] practical purposes by plaintiff, through its said officers and troops."

1

ages.

The judgment of_the_court below must therefore be reversed, and the cause remand-ble, ed to the Circuit Court for the District of Washington, with directions to grant a new trial.

The CHIEF JUSTICE and Mr. Justice lan dissented from the opinion of the court.

UNITED STATES, Appt.,

บ.

JOHN KRALL.

(See S. C. Reporter's ed. 385-391.)

Judgment, when not final.

The bill then averred that at a point on said stream above the reservation the defendant, his agents, and employees "are now, and have been since June, 1894, actually engaged in wrongfully and unlawfully diverting the waters of said Cottonwood creek, and the whole thereof, from their natural course over and across the premises hereinbefore described. And the said defendant, his agents, and employees have, since said June, 1894, been and now are actually engaged in diverting and appropriating the waters of said stream, and the whole thereof, and prevent

A judgment of the circuit court of appeals in an
action by the United States, adjudging that
defendant had acquired a valid right to the
waters of a non-navigable stream, wholly on
the public domain, as against the plaintiff,
subject to the appropriation thereof by a
military reservation, and remanding the cause
to a lower court for further proceedings, is
not a final judgment for the purposes of an
appeal to this court, as it leaves the actual
rights of the parties to be settled by the lowering
court, where defendant alleges that more
water was taken to the reservation than is
required, and used for other purposes, and
this question remains to be determined.

[No. 216.]

Argued and Submitted April 3, 1899.

cided May 15, 1899.

and obstructing the same from flowing in its natural channel across the said mili tary reservation, and thereby rendering the said premises unfit for use and occupancy as a military post."

Averring the illegality of defendant's acts in diverting the water from the stream, and that all the water flowing in its natural course De- was essential for the purpose of the reservation, the bill asserted the title of the United States to all the water in the stream, and

APPEAL from the United States Circuit Court of Appeals for the Ninth Circuit to review a decree of that court reversing a decree of the Circuit Court of the United States for the District of Idaho and decreeing that the defendant, John Krall, had acquired a valid water right as against the United States in a stream of water known as Cottonwood Creek, which was non-navigable; and remanding the cause to said Circuit Court for further proceedings. Dismissed for want of jurisdiction.

See same case below, 48 U. S. App. 351, 79 Fed. Rep. 241, 24 C. C. A. 543.

The facts are stated in the opinion.

prayed that the defendant be enjoined from
appropriating any portion thereof for his use
"as aforesaid." In his answer the defendant
denied that the water drawn off by him de-
prived the reservation of water necessary for
any of its purposes and on the contrary
charged that there was sufficient water in the
stream to meet the demands, not only of the
water right, which he asserted was vested in
him, but also to supply every demand for wa-
ter which the reservation might need. He
alleged that pursuant to the laws of the ter
ritory of Idaho, in 1877, he had located a per-
petual water right for five hundred cubic
inches of water, at a point on the stream

above the place where it flowed through the reservation, and that this location of water right was sanctioned by the laws of the United States. It was besides averred that during the years 1894 and 1895 "one Peter Sonna, and his associates, whose names are unknown to this defendant, without defendant's consent, diverted a large amount of the waters of said stream from the head waters thereof and above the point on said stream where plaintiff alleges this defendant has ob[387]structed and diverted the same, and led the same through pipes to a reservoir, on said military post, and that said military post, the officers and troops thereon stationed, have used the waters so stored in part, and have permitted large quantities thereof to pass across said reservation and to be used by the said Peter Sonna for mechanical and other purposes."

A stipulation was entered into between the parties containing an agreed statement of facts, which showed substantially this: That the reservation in question was established prior to the initiation by the defendant of his alleged water right; that "in 1877 the defendant located for agricultural, irrigation, and other and domestic and useful purposes, 500 inches of the waters flowing in Cottonwood creek, and diverted them upon the lands adjacent and in the vicinity of the easterly and southeasterly side of the military reservation, and has continuously used, and is now using, such waters, or portions thereof, for agricultural and irrigating purposes ever since that time upon such lands. His lands consist of a homestead of 160 acres, a desert entry of 160 acres, and his wife's desert of about 70 acres; he has expended between $8,000 and $10,000 in the construction of necessary ditches, flumes, reservoirs, laterals, and other improvements necessary for the reclamation of such lands, which were all desert in character, and of a class known as 'arid lands,' incapable of producing crops of fruit without the application of water. By means of the use of this water and the rights claimed under such location, he and his grantee have acquired title to said desert lands, and have been enabled to cultivate large annual crops of farm produce annually, and to propagate large orchards, which without the water they could not have done."

ly known as "2-inch pipe,' down the mountains to the reservoir before mentioned as located above the officers' quarters on the reservation. The reservoir has a capacity of about 570,000 gallons. The waters so gathered and conducted were and now are stored in said reservoir, and distributed therefrom from time to time as hereafter shown. A portion of the waters from the springs, if not diverted, would eventually flow into Cottonwood creek above defendant's point of diversion.

The statement, moreover, indicated the mode in which the reservation drew its supply of water from the stream, some of it being taken above the point where the defendant's water right was located, and contained the following:

"The waters stored in the Sonna reservoir aforesaid are used for fire purposes only on the reservation, and, are also conveyed through mains about three-quarters mile into Boisé City, where they are used in the running of a passenger elevator in one of the largest office buildings of the city, for drinking and closet purposes therein and for domestic [uses] in several city residences, and, in case of danger, for fire purposes, through hydrants located along the line of said main."

The lower court concluded that, as the stream was not navigable and was wholly on the public domain, the defendant had no right to appropriate any of the waters as against the United States, and therefore enjoined the taking by him of any water from the stream above the reservation except to the extent that license to do so might be given by the commandant of the post.

The circuit court of appeals, to which the cause was taken, referring to Atchison v. Peterson, 20 Wall. 507, 512 [22: 414, 416]; Basey v. Gallagher, 20 Wall. 682 [22: 454]; Broder v. The Natoma Water & Min. Company, 101 U. S. 274 [25: 790]; and Sturr v. Beck, 133 U. S. 541 [33: 761], concluded that the defendant had acquired a valid water right, even as against the United States, and therefore reversed the judgment of the trial court, and remanded the cause to that court for further proceedings in accordance with the views expresed in its opinion. The opinion of the court, after stating the right of the defendant to acquire a water privi-[389] lege, on public lands of the United States, even as against the United States, declared as follows:

"His [the defendant's] appropriation was, of course, subject to the prior appropriation and use of the waters of the stream made by the government officials for the purpose of the military post reservation, which consisted of 640 acres of land, and was located on the stream in question below the point of the appellant's diversion."

It is charged in the assignment of errors "On or about the year 1894 one Peter that the decision of the court of appeals was Sonna and his associates, without the con- erroneous, first, because it recognized the sent of the defendant, went upon the head right of the defendant to acquire a water waters of said 'Five-Mile Gulch,' one of the right as against the United States; and, secmain tributaries of Cottonwood Gulch, and ond, because it held that the water right of [388]at sundry points gathered and appropriated the defendant, which originated after the es the waters of large and flowing springs there tablishment of the reservation, could deprive situated, and which are supply springs of the reservation of water necessary for its said 'Five-Mile Gulch,' and the stream there purposes. This is asserted to be the conse situated, and about four miles above the quence of the decree, because it is argued point of the defendant's diversion, and con- it may be construed as depriving the govern veyed the waters of said springs by means ment of the right to use but a quantity of of pipes and mains, the latter being common-water which had been previously actually ap

CE M. ISRAEL, Plff. in Err.,

บ.

F. GALE, as Receiver of the El-
mira National Bank.

propriated for the use of the reservation, I would be obliged, as did the court of appeals, thus preventing it from enjoying the water to remand the case to the trial court for furessential for the purposes of the post, and ther proceedings. The gravamen of the comrendered necessary by its expansion and de- plaint was that the alleged water right of velopment. To the first question the argu- the defendant had deprived the reservation ment at bar was principally addressed. of water required for its purposes. *Certain-[391] Before considering the assignments, how-ly if on a further trial the proof should esever, we are met on the threshold of the case tablish that the deficiency of supply at the with the question whether the record is prop-reservation arose, not from the drawing off erly here, because of the want of finality of by the defendant of water covered by his wathe judgment rendered by the circuit court ter right, but from the act of those who, subof appeals. On its face the decree of that sequent to the location of the defendant's ascourt is obviously not a final judgment, since serted water right, tapped the sources of the it did not dispose definitely of the issues pre- supply of the stream and carried the water sented, but simply determined one of the le- to the reservation, whence it was distributed gal questions arising on the record, and re- to Boisé City, a very different condition of manded the case to the lower court for fur- fact from that stated in the complaint would ther proceedings. When the state of the rec-be presented. It follows, from these concluord, upon which the state of appeals passed, sions, that the judgment below was not final, is considered in the light of the pleadings and the appeal taken therefrom must be, and and agreed statement of facts, it becomes it is, dismissed for want of jurisdiction. obvious that the decree by that court rendered was not only not in form, but also was not in substance, a final disposition of the controversy. The cause of action allleged in the complaint was the diversion of water by the defendant from the stream, to CHAR the detriment of the requirements of the reservation, by a water right acquired by the defendant after the establishment of the reservation. The agreed statement of facts, although it made it unquestioned that the defendant's asserted water right had been located on the stream above the reservation, after its establishment, also made it equally clear that after such location, above the point where the defendant's water right was fixed, water had been drawn off and carried to the reservation, and there retained in a reservoir and supplied in part, at least, to Boise City for purposes wholly foreign to the military post. There was nothing whatever in the agreed statements of facts by which it could be determined whether the amount of water thus drawn and carried to the post and used for purposes foreign to its wants would, if used for the purposes of the post alone, not have been entirely adequate to supply every present or potential need. Concluding on the general question of law that the defendant could acquire a water right, Argued April 25, 26, 1899. Decided May as against the United States, subject to the paramount and previous appropriation of the reservation, the court manifestly, from the

state of the record, was not in a position to adjudge the rights of the parties without further proof as to exactly what would be the situation if water had not, subsequent to the establishment of the water right of the defendant, been taken from the sources of supply above his location and carried to the reservation and there distributed for other than reservation purposes. This condition of things rendered it therefore essential to rer and the cause in order that the exact situation might be ascertained before the rights of the parties were finally passed upon. The fact that the decree appealed from was not final is moreover conclusively demonstrated by considering that if on the present appeal we should conclude that the judgment of the court of appeals was correct, we would be unable to dispose of the controversy, and we

(See S. C. Reporter's ed. 391-397.) Diversion of an accommodation note from its proper use consideration for its discount. 1. An accommodation note is not shown to have been diverted from the use for which it was given, by discounting it at a bank at which it was made payable, merely because the person who obtained it told the maker that he wanted it for the purpose of a building he was putting up.

2.

A bank which discounts an accommodation
note cannot be said to have given no consid-
eration for it because of a large overdraft of
the account of the person from whom it was
taken, when the overdraft was the same day
substantially covered by other credits and
more than the amount of the accommodation
note was subsequently paid out on the same
account.
[No. 265]

15, 1899.

Court of Appeals for the Second Circuit
to review a judgment of that court affirm-
ing the judgment of the Circuit Court of the
United States for the Southern District of
New York in favor of the plaintiff, Charles
F. Gale, as receiver of the Elmira National
Bank, against the defendant, George M.
Israel, for the amount of a promissory note.
Affirmed.

'N ERROR to the United States Circuit

See same case below, 45 U. S. App. 219,
77 Fed. Rep. 532, 23 C. C. A. 274.

The facts are stated in the opinion.
Mr. Frank Sullivan Smith, for plain-
tiff in error:

Robinson's transaction with the bank did
not bind the maker of the note.

The note in suit was without consideration and never had a legal inception.

Daniel, Neg. Inst. § 174; Wilson v. Ells

1019