on his engineer's seat, unconscious, with his right arm and pretty nearly half of his body outside of the cab, leaning with the right side and arm over the arm rest of the engine. There was a cut about an inch over the right ear. He had been struck by the end of a mail crane, or a mail sack that had been placed on it to be picked up by a mail train following Linder's, which was an extra, carrying soldiers. In order to have uniformity, the Postoffice Department fixes the distance of the cranes from the equipment, and the length of the hooks, so that, in the language of a witness for the plaintiff, "the same hook that will take a sack off a crane in Arizona or New Mexico will take it as it goes through western Kansas." The evidence was all to the effect that this crane stood at the same distance as all the others along the road. The end of the crane, when elevated, was not nearer to the train than 14 inches, but might have been found to be as near as that, and therefore near enough to be capable of hitting a person leaning out of the window, as indeed was shown by the event. Linder had been upon this route for some years, had [417] passed over it many times, and must be presumed to have known of the crane. It was visible from the engineer's seat, half a mile ahead, through a front window. About a mile before reaching Carney, Linder had noticed that the main driving pin on the engine was getting hot, and crept out upon the running board about it, and had returned. It may be supposed that, at the time of the accident, he was leaning out of the side window to look at it again, and was acting in the course of his duty. The position in which his body was first seen and the place of the wound indicate that he was more than 14 inches out from the engine's side. to see special circumstances to qualify this part of the question-which is whether or not it is consistent with the duty of a railroad to its employees to erect railroad cranes of which the end of the arm, when in use, is 14 inches from the side of the train. The railroad is required and presumed to know its duty in the matter, and it would seem that the court ought to be equally well informed. It cannot be that the theory of the law requires it to be left to the uncertain judgment of a jury in every case. See Southern P. Co. v. Pool, 160 U. S. 438, 440, 40 L. ed. 485, 486, 16 Sup. Ct. Rep. 338. It is impracticable to require railroads. to have no [418] structures so near to their tracks as to endanger people who lean from the windows of the cars. Most passengers are familiar with cautions against putting out heads or arms. However it may be in other cases where there is more or less choice as to position, this is true as to the postal cranes. The farthest point at which a bag could be picked up is 29 inches, and it requires a less distance than that to be sure of getting the bag. In short, it would be impossible to use the contrivance with absolute certainty that no accident would happen if a man put his head out at the wrong moment. It equally is impossible to condemn railroads as wrongdoers simply for adopting the device with the conditions imposed by the Postoffice Department. When a railroad is built, it is practically certain that some deaths will ensue, but the builders are not murderers on that account when the foreseen comes to pass. On the common-law principles of tort, the adoption of an improvement in the public interest does not throw the risk of all incidental damage upon those who adopted it, however fair it may be to put the expenses of insurance upon those who use it. It is going very far to leave it open to a jury to attach liability in tort to a system by which the ends of the arms of postal cranes come to 14 inches from the car. In this case the question is not whether a reasonable insurance against such misfortunes should not be thrown upon the traveling public through the railroads, or whether it always is possible for a rail- But, further, we must take it, as we road employee to exercise what would be have said, that Linder perfectly well knew called due care for his own safety, and to of the existence of the crane where it do what he is hired to do. The question is stood, and could have seen it from his whether the railroad is liable under the seat had he looked, long before he statute, according to the principles of the reached it. He entered the employment common law regarding tort. The first of the railroad when it had this applielement in it is the standard of conduct to ance manifest in its place. The only elebe laid down for the road. The stand- ment of danger that he may not have apard concerns a permanent condition not preciated was the precise distance which only at this place, but at many places the point of the crane would reach. But along the road, and presumably at in- an experienced railroad man cannot be numerable others on all the large rail- supposed to have been ignorant that such roads of the United States. There are no a projection threatened danger, and, . knowing so much, he assumed the risk | danger to trainmen; that, on the line inthat obviously would attend taking the volved, the arms of cranes were extended chances of leaning well out from [419] horizontally toward the track, so as to be the train. As we have said, the only a source of danger to engineers, only two possible inference on the uncontra- or three times a day, at widely separated dicted evidence of the plaintiff's wit- intervals, when they were used to support nesses was that he leaned out con- a mail bag for ten minutes before the arsiderably more than 14 inches, as rival of each mail train,-a fraction of an shown by the position of his body hour in twenty-four; and that Linder, and the place of the cut on his head. when leaning out of his cab to see the The probability is that the distance of condition of a hot driving pin, was struck the crane was somewhat greater than the an inch above his ear, so that, if the arm minimum that we have assumed, but that had been 3 or 4 inches farther from the we lay on one side. Confining ourselves track, he would not have been injured. to the case of postal cranes, we are of opinion that to allow the jury to find a verdict for the plaintiff was to allow them to substitute sympathy for evidence, and to impose a standard of conduct that had no warrant in the common law. Butler v. Frazee, 211 U. S. 459, 465-467, 53 L. ed. 281, 284, 285, 29 Sup. Ct. Rep. 136; Kenney v. Meddaugh, 55 C. C. A. 115, 118 Fed. 209. Judgment reversed. Mr. Justice Clarke, dissenting: The record does not show: That government requirements for mail cranes require them to be as close to the track as this one was. On the contrary, the only evidence to the point is that of an employee in the government mail service, who testified that the hooks on mail cars are adjusted to catch mail bags if within 29 inches of their sides; that, allowing for the swaying of the cars, they will catch them if 26 inches away, and that the sides of the cars are "flush" with the sides of engine cabs. The point of the crane arm which killed Linder "was about 14 inches from the side of the cab;" but on this evidence it could have been placed 26 inches away, where it would not have been a source of danger to him. Engineer Linder, when leaning out of his cab, in the discharge of his duty, to see the condition of a "hot driving pin," was struck on the head and killed by the end of a horizontally extended arm of a mail crane. There is no question of con- Although the civil engineer who had tributory negligence in the case, the charge of the cranes on the division was judgment could not be reversed for that, a witness for the company, he was not under the Federal Employers' Liability asked the distance of the crane causing the Act. The negligence of the railroad com- injury, or of any other crane, from the pany is palpable, but, nevertheless, the track,-a suspicious circumstance,—and finding of a properly instructed jury and that other cranes were at the same disof two state courts is here reversed be-tance [421] as the one which caused cause this court concludes, as a matter of the injury can only be inferred from fact, that the mail crane arm was such an obvious and conspicuous source of danger to Linder that he must be held, as a matter of law, to have assumed the danger from it, by continuing in the service of the company. The record shows: That Linder was a freight engineer, and, as such, had nothing to do with mail cranes, and had neither occasion nor opportunity, except very rarely, to see what, if any, danger the crane arms could be to him when in the discharge of his duties, for, during the two [420] years next before his death, he had made but twelve trips on passenger trains, only three of which were on trains which "picked up" mail from cranes; that when mail cranes are not in use the arms hang vertically beside the supporting post, which is 3 feet 8 inches from the side of an engine, and obviously in such position they are not a source of inadequate statements of witnesses who had never made any measurements, and who gave the merest impressions with respect to them. Where, as here, 3 or 4 inches is a matter of life and death, randon estimates are valueless and should not be accepted, especially when the company certainly had perfectly definite information, which was suppressed. A hard-and-fast assumption of law should not be based on findings of fact by this court, derived from such evidence. There is no description whatever in the record of the length, dimensions, or appearance of the arms of the crane which caused the death of Linder. How, on such evidence, can it be justly stated, that such crane arm was so permanent and conspicuous a source of danger that, as a matter of law, Linder, a freight engineer, usually running past it at high speed when its arms were down, should be charged with knowing and appreciating | trine as it has been worked out in the and assuming the risk? cases cited, will render railway companies careless in placing obstructions near to their tracks, and will result in the injury and death of many innocent and careful men, if the effect of it is not promptly corrected by state and national statutes, and therefore I cannot consent to join in it. It has been a criminal offense in Ohio for twenty years to maintain mail cranes nearer than 18 inches to the nearest point of contact with the widest locomotive on the road erecting such cranes (97 Ohio Laws, 274), and there are similar statutes in other states. If the point of the crane arm here involved had been 18 inches, 4 inches farther than it was, from the engine, Linder would not have been Pitney join in this dissent. injured. There is no evidence whatever that Linder actually knew that the crane arm extended close enough to the track to cause him injury, and the latest formulation by this court of the rule applicable to the case is: "In order to charge an employee with the assumption of a risk attributable to a defect due to the employer's negligence [as this defect was] it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew that it endangered his safety; or else [422] such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it." Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 102, 58 L. ed. 521, 524, 34 Sup. Ct. Rep. 229. Earlier expressions of the rule are that the danger must be "plainly observable" (Texas & P. R. Co. v. Archibald, 170 U. S. 665, 672, 42 L. ed. 1188, 1191, 18 Sup. Ct. Rep. 777, 4 Am. Neg. Rep. 746; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct Rep. 24, 15 Am. Neg. Rep. 230), or "so patent as to be readily observable" (Texas & P. R. Co. v. Swearingen, 196 U. S. 51, 62, 49 L. ed. 382, 387, 25 Sup. Ct. Rep. 164, 17 Am. Neg. Rep. 422). It is "a strong thing" to hold, on the indefinite evidence in this record, which I have attempted accurately to detail, that a mail crane arm is such a permanent and conspicuous source of danger to a freight engineer as to bring this case within the scope of the decisions cited, and it is a yet stronger thing to reverse the finding of a jury properly instructed, and the judgments, on a question of fact, of two state courts, which the record shows acted with full appreciation of, and with a desire to follow, the decisions of this court with respect to assumption of risk. Mr. Justice Day and Mr. Justice [423] EDWARD S. ATWATER, Petitioner, V. STEPHEN G. GUERNSEY, Samuel H. Brown, and Charles A. Hopkins, Trustees in Bankruptcy of Morton Atwater, et al. (See S. C. Reporter's ed. 423-425.) effect barring claim. Release Ct. 1908.] [No. 511.] Submitted under the 20th Rule December 14, 1920. Decided January 3, 1921. (NWRIT of Certiorari to the United States Circuit Court of Appeals for the Second Circuit to review a judgment which affirmed a judgment of the District Court for the Southern District of New York, expunging a claim against a bankrupt estate. Affirmed. See same case below, 266 Fed. 278. C. C. A. The facts are stated in the opinion. In the absence of an estoppel, it is always competent to show that the delivery of an instrument was upon certain conditions or for a particular purpose, and its effect will be limited thereby. In practice certainly, and I think in theory, the decision of the court in this case will introduce a new and unfor- Peugh v. Davis, 96 U. S. 332, 24 L. tunate standard into the law of assump-ed. 775; Brick v. Brick, 98 U. S. 514, 25 tion of risk, which will confuse the doc- L. ed. 256; Jackson v. Lawrence, 117 U. the rules of the Stock Exchange, Edward Atwater executed a release of all claims against Eliot Atwater, "and more particularly by reason of an advance of the sum of ($73,000) seventy-three thousand dollars, made to said Eliot Atwater, to enable him, the said Eliot Atwater, to purchase a membership in the New York Stock Exchange." There was a second release, with a similar special clause, covering $2,010, to enable the son "to pay his initiation fee to the New York Stock Exchange." The master and both courts considered the release a bar to the petitioner's claim. S. 679, 29 L. ed. 1024, 6 Sup. Ct. Rep. | both courts have found, and as we 915; Cabrera V. American Colonial see no reason to doubt. In connecBank, 214 U. S. 224, 53 L. ed. 974, 29 tion with the purchase, as required by Sup. Ct. Rep. 623; Valdes v. Central Altagracia, 225 U. S. 58, 56 L. ed. 980, 32 Sup. Ct. Rep. 664; Ducie v. Ford, 138 U. S. 587, 34 L. ed. 1091, 11 Sup. Ct. Rep. 417; Western Underwriting & Mortg. Co. v. Valley Bank, 150 C. C. A. 247, 237 Fed. 45; Lumley v. Wabash R. Co. 22 C. C. A. 60, 43 U. S. App. 476, 76 Fed. 66; Herrick v. Carman, 10 Johns. 224; Grierson v. Mason, 60 N. Y. 394; Matthews v. Sheehan, 69 N. Y. 585; Juilliard v. Chaffee, 92 N. Y. 529; Marsh v. McNair, 99 N. Y. 174, 1 N. E. 660; Schmittler v. Simon, 114 N. Y. 176, 11 Am. St. Rep. 621, 21 N. E. 162; Ensign v. Ensign, 120 N. Y. 655, 24 N. E. 942; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961; Blewitt v. Boorum, 142 N. Y. 357, 40 Am. St. Rep. 600, 37 N. E. 119; Baird v. Baird, 145 N. Y. 659, 28 L.R.A. 375, 40 N. E. 222; Higgins v. Ridgeway, 153 N. Y. 139, 47 N. E. 32; Sterling v. Chapin, 185 N. Y. 398, 78 N. E. 158; Grannis v. Stevens, 216 N. Y. 583, 111 N. E. 263. It hardly was necessary to reach that point, as it seems to us obvious that, whatever moral obligation was considered to remain, both father and son understood at the time of the transaction that no legal obligation arose from the advance, and the There is no release expressed the fact. doubt that the release was intended to be an operative instrument, at least, so far as creditors who were members of the The majority opinion is in direct con- Stock Exchange were concerned. That beflict with the decision by the highest ing so, it would be going very far to alcourt of the state of New York in Ster-low a cotemporaneous parol understandling v. Chapin, 185 N. Y. 395, 78 N. E. 158. Mr. R. Dulaney Whiting submitted the cause for respondent. Mr. C. W. H. Arnold was on the brief: Any debt existing in favor of the father against the son was absolutely extinguished by the releases, and was never revived. Taylor v. Hotchkiss, 81 App. Div. 475, 80 N. Y. Supp. 1042, affirmed in 179 N. Y. 546, 71 N. E. 1140. Mr. Justice Holmes delivered the opin ion of the court: ing to be shown that it should not do the very thing that on its face it specifically purported to effect. But we find no such understanding. It is admitted that no document ever was given to show it. The father testified that his son never agreed to repay the money, and that nothing was said about repayment; the son testified that he understood that there was no claim against himself legally. It is true, no doubt, and natural, that he should have considered that there was a moral obligation, and, in pursuance of it, interest was paid to the father until the bankruptcy. It is true, also, that father and son, in meant what it said without equivocarelease was given in good faith, and tion or reserves. It is unnecessary to consider whether the circuit court of their testimony, use some phrases that This is an appeal from an order ex-satisfied that, [425] at the time, the favored the present claim. But we are punging a claim of the petitioner, Edward Atwater, against his son, Eliot Atwater, a member of the firm of Atwater, Foote, & Sherill, adjudicated bankrupts. The claim is for $75,000, furnished by the father to the son, to enable him to buy a seat in the New York Stock Exchange, and to pay his initiation fee. The seat was bought and the use of it was [424] contributed to the firm by Eliot Atwater, the seat remaining his individual property, as the master and 340 appeals were successful in distinguishing Sterling v. Chapin, 185 N. Y. 395, 78 N. E. 158, from the present case, on the assumption that the parties attempted to qualify the release. More need not be said to show that the decree should be affirmed. Decree affirmed. 254 U. S. NATIONAL BRAKE & ELECTRIC COM- mode of reviewing in the Federal Supreme PANY, Petitioner, V. Court a judgment of the circuit court of appeals upon an application for leave to NEILS A. CHRISTENSEN and Allis-Chal- file in the district court a petition in the mers Company. (See S. C. Reporter's ed. 425–433.) Bill of review-grounds. 1. The unsuccessful defendant in a patent suit, in which a Federal circuit court of appeals has affirmed the decree below, upholding the patent, and directing an accounting, has the right to apply by petition to the circuit court of appeals for leave to file a bill in the district court in the nature of a bill of review, setting up as a bar to the former proceedings a decree in another circuit, adjudging the patent to be invalid. [For other cases, see Review, III. in Digest Sup. Ct. 1908. ] Review-leave of court-discretion. 2. An application in an appellate court for leave to file a bill of review in the court below is addressed to the sound discretion of the appellate tribunal, and should be decided upon considerations addressed to the materiality of the new matter and diligence in its presentation. [For other cases, see Review, IV. c, in Digest Sup. Ct. 1908.] nature of a bill of review in a patent suit, since such proceeding was ancillary to the original jurisdiction invoked, and was still, in its essence and nature, a suit involving the validity of a patent, which is expressly made final in the circuit court of appeals. [For other cases, see Certiorari, II. a; Appeal and Error, III. d, 2, e, in Digest Sup. Ct. 1908.] Certiorari — to circuit court of appeals review of merits disposition of cause. an 5. The Federal Supreme Court, upon reversing on certiorari the judgment of a circuit court of appeals on a petition which that court should have regarded as application for leave to file in the district court a petition in the nature of a bill of review, invoking a consideration of the effect of a decree in another district as res judicata, will not pass upon the merits of the petition, but will remand the cause to the circuit court of appeals for a determination of the effect of such decree. [For other cases, see Certiorari, II. c, in Digest Sup. Ct. 1908.] [No. 111.] Bill of review — leave of appellate court Argued December 10, 1920. Decided Jan petition. uary 3, 1921. ON WRIT of Certiorari to the United 3. A petition to a Federal circuit court of appeals by which defendant in a patent suit seeks, after that court has affirmed a decree below, upholding the patent and directing an accounting, to obtain the benefit the Seventh Circuit to review a judgment of a decree in another circuit as res denying a petition for an order directing judicata, should be treated by the circuit a dismissal of the bill in a suit for the court of appeals as an application for leave to file in the district court a petition in the nature of a bill of review, invoking the Note. As to when and for what a bill of review may be brought-see notes to Shelton v. Van Kleeck, 27 L. ed. U. S. 269, and Bank of United States v. Ritchie, 8 L. ed. U. S. 891. As to bill of review for newly discovered evidence-see notes to Smith v. Rucker, 30 L.R.A. (N.S.) 1030, and Safe Deposit & T. Co. v. Gittings, 4 L.R.A.(N.S.) 865. As to certiorari in United States courts-see note to Clark v. Hackett, 17 L. ed. U. S. 69. On certiorari from Federal Supreme Court to circuit courts of appeals-see notes to United States v. Dickinson, 53 L. ed. U. S. 711, and Furness, W. & Co. v. Yang-tsze Ins. Asso. 61 L. ed. U. S. 409. infringement of a patent, brought in the District Court for the Eastern District of Wisconsin. Reversed and remanded for further proceedings. See same case below, 169 C. C. A. 600, 258 Fed. 880. The facts are stated in the opinion. Mr. John S. Miller argued the cause, and, with Messrs. Edward Osgood Brown, Paul Synnestvedt, and Charles A. Brown, filed a brief for petitioner. Messrs. Joseph Bell Cotton and Louis Quarles argued the cause, and, with Messrs. William R. Rummler and Willet M. Spooner, filed a brief for respond ents. Messrs. Charles Neave and Clarence D. Kerr filed a brief for the General Electric Company as amici curiæ. Mr. Justice Day delivered the opinion of the court: Suit was brought by Christensen and the Allis-Chalmers Company in the district court of the United States for [427] the eastern district of Wiscon |