"First, that the person charged devised a scheme or artifice to defraud; and, second, that in carrying out such scheme such person either deposited a letter or package in the post office, or took one therefrom."

As to the law applicable the court said:

"Under section 5480 of the Revised Statutes of the United States, it was then necessary to charge, not only that a scheme to defraud was devised, but that it was intended to be effected by the use of the mails. That was the former statute. But under section 215 of the Criminal Code [Act March 4, 1909, c. 321, 35 Stat. 1130 (Comp. St. 1916, § 10385)], it is only necessary to charge and prove that the scheme or artifice to defraud was devised or intended to be devised, and that the mails were actually used in executing or attempting to execute the scheme."

In our judgment, what the court thus said in reference to the facts shows that the court did hold that the use of the mails must be proved as laid, and therefore its refusal of defendants' fifth point cannot be regarded as any denial of the contention made in the point, viz. that "the use of the mails is thus made an essential part of the scheme and must be proved as laid," for that is what the court had already charged; but the denial of the point went to the refusal to give binding instructions to acquit on the ground the proof "has not been done, and there can therefore be no conviction in the case." Taking the charge, the point, and its answer as a connected whole, it is clear to us that the court's refusal of this point was in reality but the refusal to give binding instructions for the defendants, and as such involved

no error.

It is further contended the court erred in its answer to defendants' seventh point, which point and answer were:

"Seventh. The various means which it is charged in the indictment were to be employed by the defendants in carrying out the scheme to defraud are essential parts of the scheme, and must be proved as laid in the indictment." Answer of Court: "The scheme to defraud and the means used to carry it into execution are distinct, although the latter may be evidence of the existence of the former. The indictment alleges that the scheme was to be effected by means of the Post Office establishment of the United States, but it is not necessary, under section 215 of the Penal Code, that when the scheme was formed the parties intended to execute it by the use of the mails."

We are unable to see any harmful effect the point and answer had in the case. The court, in the extracts of the charge already made, had already charged that the government must show that the persons charged devised the scheme or artifice described, and the answer to the point in no way lessened this requirement of proof in the charge. The substance of the answer was that:

"It is not necessary, under section 215 of the Penal Code, that when the scheme was formed the parties intended to execute it by the use of the mails."

This, as we have seen, was what the court had already instructed the jury was the law. Therein we find no error, as we read the two acts of Congress and the decision of the Supreme Court in U. S. v. Young, 232 U. S. 155, 34 Sup. Ct. 303, 58 L. Ed. 548.

We are of opinion the court below was right in the construction given by it in the charge and in the answer to this point. The remaining

assignments of error, bearing on the refusal of the court to arrest judgment, disclose no error. The reasons warranting a denial of those several requests were, in our judgment, rightly set forth in the opinion of the trial judge.

Finding no error in the record, and satisfied the defendants had a fair trial, we affirm the judgment of sentence entered in the court be low.

RAHM v. MAYOR, ETC., OF CITY OF VICKSBURG.

(Circuit Court of Appeals, Fifth Circuit. February 4, 1919.)

MUNICIPAL CORPORATIONS

No. 3297.

768(3)—SUFFICIENCY AND SAFETY OF WAY

SIDEWALK Above Grade of STREET.

A city held not chargeable with negligence, which rendered it liablè for injury to a person who fell when starting to cross a street in the evening in the middle of a block, because the sidewalk was some 4 or 5 feet higher than the grade of the street.

In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge.

Action at law by F. H. Rahm against the Mayor and Aldermen of the City of Vicksburg. Judgment for defendant, and plaintiff brings error. Affirmed.

R. L. McLaurin, of Vicksburg, Miss. (McLaurin & Armistead, of Vicksburg, Miss., on the brief), for plaintiff in error.

George Anderson, of Vicksburg, Miss. (Anderson, Vollor & Kelly, of Vicksburg, Miss., on the brief), for defendant in error.

Before WALKER and BATTS, Circuit Judges, and SHEPPARD, District Judge.

BATTS, Circuit Judge. Veto street, between Washington and Walnut, in the city of Vicksburg, was improved by reducing the grade. No corresponding change was made in the sidewalk on the north side. This sidewalk, from Washington street east towards Walnut, was of concrete; and, starting with the same grade as Veto street at Washington, it was, at the middle of the block, from 32 to 5 feet higher than the street. From this point the sidewalk was of brick, and, gradually descending, again reached the level of Veto street at Walnut. Plaintiff in error, a gentleman of more than 70, a traveling salesman, not residing in the city, was walking from Washington east towards Walnut on the north sidewalk of Veto. Reaching the highest point on the sidewalk, he states that he saw what appeared to him • a hole in the sidewalk, and, in order to avoid any danger, he left the sidewalk and stepped into the street at the point at which the sidewalk was highest from the street. He sustained injury from the resulting fall, and instituted suit against the city for damages.

The declaration charged that plaintiff proceeded on a concrete side

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

walk until "when the sidewalk ceased to be of concrete and continued in brick pavement, which under the dim reflection from the street light appeared very much darker to the plaintiff than the concrete sidewalk"; that "in an effort to avoid possible danger ahead of him, where he could not see so plainly, he turned to the right, intending to cross Veto street and to take the sidewalk on the south side, where he could see much better from the light available"; that at this place "Veto street is some 4 or 5 feet lower than the sidewalk," the stepoff being practically perpendicular; that the accident to plaintiff was caused by negligently leaving the sidewalk at the old grade and not providing sufficient light or a railing. In a second count it was alleged that the north sidewalk was not lowered to avoid complications or litigation with adjacent owners of property. The trial court overruled a demurrer to the declaration.

After the introduction of evidence he instructed the jury, but concluded his charge by directing a verdict for the defendant. The action of the court may have been unusual; but, if the evidence required a directed verdict, instruction could be given at any time before submission to the jury. The question for determination is, whether there was evidence requiring the submission of the case to the jury. The city is not an insurer of the safety of persons who use its streets and sidewalks. Its obligations are met when reasonable care is exercised to keep them in reasonably safe condition. The city provided a safe street between Washington and Walnut, and safe sidewalks between the two streets. At Washington and Walnut there were safe places to cross from the sidewalk on one side to that on the other. There is no law and no customary practice requiring that safe crossings be provided at all points between streets on a block. Mr. Rahm chose to utilize, after night, a sidewalk of the city. The sidewalk was an entirely safe one, and if he had kept on it no accident would have occurred. He chose rather, without any investigation of what appeared to him to be a hole, but which in fact was not, to leave the sidewalk in the middle of the block, and take the chance which might be involved in crossing from one sidewalk to the other at an unusual place. This he did without making any effort to ascertain the relation between the sidewalk and the street-without knowing or undertaking to find out the distance from the one to the other. A difference between the grade of a street and of a sidewalk is common. It is apparent that plaintiff's accident resulted from his mistake in the first instance, his failure to easily correct his impression, and his failure to ascertain whether he could, with safety, step from the sidewalk to the street.

The plaintiff testified on cross-examination that the lights were dim on that night. At Washington, at the intersection of Veto, there was a 1,500 candle power arc light, and on Walnut street, at the intersection of Veto, there was an 80 candle power incandescent light. There is no evidence that lights of these powers were not entirely sufficient to light up Veto street and its sidewalks. There was nothing to obstruct the light. The circumstance that the witness testified that, on the particular night, the lights were dim, would not carry the in

ference that the city had not exercised ordinary and proper care in the matter of lighting.

The circumstance that the city would have lowered the sidewalk, except for the attitude of the property owners, does not import negligence.

It is suggested that contributory negligence does not, under the laws of Mississippi, preclude recovery. The facts developed do not make a case of contributory negligence. Contributory negligence involves the idea of negligence by both parties. The evidence does not disclose any particular in which the city failed to perform its duty. The instructions of the court were justified by the evidence, and the case is Affirmed.

DENVER OMNIBUS & CAB CO. v. KREBS. *

(Circuit Court of Appeals, Eighth Circuit. January 15, 1919.)

No. 5033.

1. EVIDENCE 123(11)—RES GESTE-STATEMENTS OF Agent.

Statements made by the driver of a taxicab to a passenger, immediately after an accident in which a pedestrian was injured, are admissible against his employer as part of the res gestæ.

2. EVIDENCE ~492, 568(6)—OPINION EVIDENCE-QUALIFICATION OF WITNESS. Upon the question of the speed of a taxicab no technical knowledge is required to qualify a witness to state his opinion; its weight being for the jury.

In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.

Action at law by May M. Krebs against the Denver Omnibus & Cab Company. Judgment for plaintiff, and defendant brings error. Affirmed.

John A. Deweese and Charles A. Prentice, both of Denver, Colo., for plaintiff in error.

J. W. Kelley and Eselyn B. Kelley, both of Denver, Colo., for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

TRIEBER, District Judge. For convenience the parties will be referred to as they appeared in the court below, the defendant in error as plaintiff, and the plaintiff in error as defendant.

This is an action for damages for personal injuries, alleged to have bean sustained by the plaintiff by the negligence of the defendant. The complaint charged that, while the plaintiff was walking across a public crossing on a public street in the city of Denver, an employé of the defendant, driving at a reckless speed one of the taxicabs of the defendant, negligently, recklessly, and carelessly struck the plaintiff, seriously injuring her. The answer, in addition to general denials, pleaded contributory negligence of the plaintiff.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied April 12, 1919.

Upon a trial to a jury a verdict in favor of the plaintiff was returned, upon which judgment was entered, which it is sought to reverse by this writ of error. There are several errors assigned to the admission of evidence and also the refusal of the court to direct a verdict for the defendant.

[1] One of the objections to the evidence is the admission of that part of the testimony of a witness, who was a passenger in the taxicab which struck the plaintiff and inflicted the alleged injury. He testified that:

"When passing the place where the injury occurred the car suddenly swerved. When he asked the chauffeur what was the trouble, he kept on going and replied: 'I nearly hit a woman.' I said: 'Hadn't we better go look and see if she is hurt? He replied: 'No; I didn't hit her; I just missed her.' As the machine continued. I noticed that the uptown bound street car had stopped, and I called the attention to the chauffeur to that fact, whereupon he said: 'I am pretty sure I didn't hit her.'"

As the chauffeur was the agent of the defendant, his statements, made at the time of the accident, and while in the discharge of his duties as a chauffeur of a taxicab carrying a passenger, were clearly admissible as a part of the res gesta. 2 Chamberlayne on the Modern Law of Evidence, § 1344; 16 Cyc. p. 1242.

[2] Did the court err in admitting the testimony of the plaintiff and the witness Lucas as to the speed the taxicab was running, as they had not qualified as experts, it is claimed? The plaintiff testified that she had frequently ridden in automobiles, and knew about their speed. The witness Lucas testified:

"I have ridden many times in automobiles over a period of years, and have observed their speed, both with and without looking at the speedometer. I have also observed the speed of railroad trains, by watching the speedometers in private and business cars."

This is sufficient to qualify these witnesses to testify to the speed of the taxicab. In a matter of this nature no technical knowledge is required to admit such opinions; the jury to determine the weight to be given to the testimony. Robinson v. Louisville Ry. Co., 112 Fed. 484, 50 C. C. A. 257; Porter v. Buckley, 147 Fed. 140, 78 C. C. A. 138; Rothe v. Pennsylvania Co., 195 Fed. 21, 114 C. C. A. 627; Erie R. R. Co. v. Weber, 207 Fed. 293, 125 C. C. A. 37; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 104; Lorenzen v. United Ry. Co., 249 Mo. 182, 155 S. W. 30. In Omaha & C. B. St. Ry. Co. v. McKeenan, 250 Fed. 386, ——— C. C. A. —, Judge Carland, speaking for this court, held that the admissibility of such evidence is within the discretion of the trial court.

The only other ground upon which a reversal is sought is the refusal of the court to direct a verdict for the defendant. It will serve no useful purpose to set out the evidence. We have carefully read it, and are satisfied that there was substantial evidence to require the submission of the cause to the jury.

Finding no error, the judgment is affirmed.