tion, for which it received full value. This is likewise true of all the other items of indebtedness constituting the $50,000. The Constitution does not prohibit a real increase for full consideration of the indebtedness of the corporation, but a fictitious increase only, and as the increase to the extent of $50,000 of the $135,000 indebtedness was real, and not fictitious, that increase cannot, in reason, law, or equity, be held to fall under the ban of the Constitution of Oklahoma.

The unavoidable result is that, where a corporation creates an increase of indebtedness, a part of which is for a full and valuable consideration and is a real increase, and a part of which is without such consideration and is a fictitious increase, and the real increase is readily severable from the fictitious increase, the former is valid, although the latter may be void or voidable under article 9, section 39, of the Constitution of Oklahoma, and the mortgage indebtedness of the Times Company to the extent of $50,000 was valid, notwithstanding that section.

This conclusion is consistent with the treatment by the federal courts of somewhat similar questions in Memphis, etc., Railroad v. Dow, 120 U. S. 299, 7 Sup. Ct. 482, 30 L. Ed. 595; Clark v. Johnson, 245 Fed. 442, 447, 157 C. C. A. 604; Granite Brick Co. v. Titus, 226 Fed. 557, 567, 570, 141 C. C. A. 313.

[5] In a claim against the estate of the bankrupt which Mr. C. B. Edgar filed he insisted that the Times Company was indebted to him for the $10,000 which he paid to it in the performance of the contracts between him and D. P. Flynn & Co., recited at the opening of this opinion. The court below held that under these contracts this $10,000 was a part of the consideration which he paid for the stock of Flynn and his associates that he bought, and that the corporation was therefore not indebted to him therefor, and it refused to allow his claim for it. From the order which disallowed this claim, Mr. Edgar appealed; but a careful consideration of the contracts, the testimony of the witnesses, and the briefs of counsel have left no doubt that the opinion and order of the court upon this subject were right.

Let the order of the court below of December 11, 1916, which disallowed that part of the claim of C. B. Edgar which related to the $10,000 he paid to the Times Company, be affirmed, with costs against him; and let the order of the court below of December 11, 1916, whereby the holders of the mortgage bonds of the Oklahoma City Times Company were adjudged to be entitled to a superior right and an equitable preference in the payment of their bonds and interest over the unsecured creditors, be affirmed also, with costs against Norman H. Wright, the trustee in bankruptcy and appellant.

AMERICAN GLYCERIN CO. v. HILL.

(Circuit Court of Appeals, Eighth Circuit. January 27, 1919.)

No. 5183.

1. EXPLOSIVES 7-CONTRIBUTORY NEGLIGENCE-JURY QUESTION.

In an action for injuries received by plaintiff who was struck by the top of an acid tank or drum which detonated as a result of a fire and explosions in the factory of defendant manufacturing nitroglycerin, whether plaintiff was guilty of contributory negligence in returning to a place in proximity to the tank after the principal explosions held, under the evidence, for the jury.

2. NEGLIGENCE

136(26)—JURY QUESTION-DIRECTION OF VERDICT.

It is only when the evidence is of such a character that all reasonable men would say on the facts shown that plaintiff was guilty of negligence that a court is justified in directing a verdict against him.

Refusal of requested instructions covered by the charge given is not

error.

4. EXPLOSIVES 7-CONTRIBUTORY NEGLIGENCE-BURDEN OF Proof.

The burden of proving contributory negligence of plaintiff seeking to recover for injuries as result of an explosion is on defendant.

In Error to the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.

Action by Oscar Shriver against the American Glycerin Company. There was a judgment for plaintiff, and defendant brings error; George S. Hill, administrator of the estate of plaintiff, who died after granting of the writ, being substituted as defendant in error. firmed.

Af

J. P. O'Meara, Charles E. Bush, and A. F. Moss, all of Tulsa, Okl., for plaintiff in error.

H. H. Montgomery, of Bartlesville, Okl., for defendant in error. Before SANBORN, Circuit Judge, and TRIEBER, District Judge. TRIEBER, District Judge. Oscar Shriver, who, since the granting of the writ of error, has died, the administrator of his estate having been substituted as defendant in error, recovered a judgment in the court below against the plaintiff in error for personal injuries, alleged to have been sustained by him by reason of the negligence of plaintiff in error. The parties will be referred to as they appeared in the trial

court.

The complaint alleged that the defendant was engaged on February 24, 1917, and for some time prior thereto, in manufacturing, keeping and storing nitroglycerin and other high and powerful explosives in a factory located about one-half mile west of what is known as the Torpedo Switch; that the plaintiff was employed and engaged on said February 24, 1917, in working for the Paragon Drilling Company and A. C. Siekman in the drilling of an oil or gas well near the said plant of the defendant, as a tool dresser; that the defendant was guilty of carelessness and neglect in the operation and maintenance of said plant. The negligence charged was that it negligently and carelessly removed fire, hot ashes, and coals from its boilers, and placed the same

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

near inflammable material of the boiler house, by reason whereof the boiler house became ignited, which caused the nitroglycerin and other explosives stored there to explode; that an acid tank, composed of zinc or iron material was thereby exploded, and pieces thereof hurled against the body of the plaintiff, severely injuring him.

The answer, in addition to a gencral denial, pleaded contributory negligence, by alleging that the plaintiff was at a safe distance from said plant at the time of the ignition and the explosions, but voluntarily, as a matter of curiosity, approached very close to the acid shed of the defendant, and but for that he would not have been injured. There was a reply denying the charge of contributory negligence.

The assignment of errors complains of the refusal of the court to direct a verdict for the defendant, the refusal to give certain instructions asked in behalf of the defendant, and also that the court erred in its charge as to the burden of proof to sustain the plea of contributory negligence.

Did the court err in refusing to direct a verdict for the defendant? It is not seriously contended by counsel for plaintiff in error that the evidence did not warrant a finding that the fire which caused the explosion was the result of the defendant's negligence, as there was substantial evidence of causal negligence in that the defendant permitted the throwing of hot ashes against the wooden side of the boiler house, and that this caused the fire, and the explosions from which the plaintiff received the injuries complained of.

[1, 2] But it is earnestly contended that the plaintiff was guilty of contributory negligence, because, it is claimed, the evidence conclusively established the fact that the plaintiff was in a place of safety and voluntarily went near the fire, with full knowledge that dangerous explosives were in close proximity, and were likely to explode by reason of the fire. The proof does not establish "conclusively," as claimed, that fact. There was substantial evidence that when the plaintiff discovered the fire, he watched it for about ten minutes, and then went away from the buildings that were burning, a distance of one-half to three-fourths of a mile; that as he was walking away he heard three explosions, the last of which was a big one; that when he heard the last one he thought everything had exploded that was explodable, and then with Mr. Cusick and Mr. Johnson he walked back to the vicinity of the burning buildings on his way to the drilling machine where he worked; that as he approached the latter a drum of acid gave way and threw the drumhead against his leg and injured it. Cusick and Johnson went back with him, and were walking along near him when this drumhead struck him. These three men thought it was ordinarily safe for them to go back by the side of these burning buildings. They supposed all explosions were over. Mr. Brenner, another employé, stayed back three-fourths of a mile away because he was afraid there was some danger. Nobody seems to have known that there was danger of the explosion of the drums containing the acid after the big explosion.

It is only when the evidence is of such a nature that all reasonable men, upon the facts shown, would say that the plaintiff was guilty of negligence that a court is justified to direct a verdict against him.

[3] The testimony made it the duty of the court to submit the question of the plaintiff's negligence to the jury. The instructions asked by the defendant and refused were fully covered by the charge of the court. A court is not required to charge the jury in the language asked by counsel, if the requested instructions are included in the court's general charge. Texas & Pacific R. R. Co. v. Watson, 190 U. S. 287, 23 Sup. Ct. 681, 47 L. Ed. 1057; Kansas City Southern Ry. Co. v. Clinton, 224 Fed. 896, 902, 140 C. C. A. 340.

The court on the issue of contributory negligence charged the jury: "That if the plaintiff went over towards his working place, the place where he usually worked, and used such ordinary care as an ordinarily prudent man would exercise, and had such regard for his own safety as an ordiDarily prudent man would have, with the knowledge of all of the facts and circumstances that the evidence shows you he did have knowledge of, then he cannot be said to have himself either caused or contributed to his injury. But, on the other hand, if the defendant shows you by a preponderance of the evidence that there was a condition existing there which caused the plaintiff to know and appreciate as a man of ordinary prudence that there was a danger in going there, a danger to his person; that there was a liability of some such thing happening as did actually happen, and that the plaintiff went there in a spirit-or that the plaintiff went there in a spirit of imprudence, lack of ordinary care, willing to take a risk, knowing that there was a risk and still willing to hazzard it, then the plaintiff cannot recover, if a preponderance of the evidence shows you that the plaintiff went there knowing and realizing that there was a danger, but willing to take that risk and danger, then he cannot recover for the happening of something which he was fairly apprised of and appreciated, if that was his situation."

[4] Nor was it error to charge the jury that the burden of proof to establish contributory negligence was on the defendant, and it must establish it by a preponderance of the evidence. That is elementary. Inland & Seaboard Co. v. Tolson, 139 U. S. 551, 557, 11 Sup. Ct. 653, 35 L. Ed. 270; Texas & Pacific R. R. Co. v. Volk, 151 U. S. 73, 76, 14 Sup. Ct. 239, 38 L. Ed. 78; City of Winona v. Botzet, 169 Fed. 321, 329, 94 C. C. A. 563, 23 L. R. A. (N. S.) 204.

The court committed no error in the trial of the cause, and its judgment is affirmed.

GRACE v. LOUISVILLE & N. R. CO.

(Circuit Court of Appeals, Fifth Circuit. February 8, 1919.)

No. 3427.

1. TRIAL 171-DIRECTION OF VERDICT-CONFLICTING EVIDENCE. Where a cause was submitted to the jury on evidence establishing a prima facie case for plaintiff and evidence in contradiction thereof, it was error, on their announcement of inability to agree, to direct a verdict for defendant, especially in the absence of plaintiff and his counsel. 2. APPEAL AND ERROR 280--RIGHT OF REVIEW-ESTOPPEL TO OBJECT.

Where verdict for defendant was directed without motion therefor, and while plaintiff and his counsel were absent by agreement between counsel, defendant is estopped to object that plaintiff did not except at the time in the presence of the jury.

Walker, Circuit Judge, dissenting.

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

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

Action at law by Aaron Grace against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

The record shows plaintiff in error, hereinafter styled plaintiff, being lawfully and by permission of defendant's agent on and aboard a moving train, was violently thrown off and ejected by the defendant's agents, to his great damage, etc., resulting in his falling under the moving train, being severely injured, mainly by loss of both of his legs. The defendant answered, specifically pleading the general issue and by notice as to evidence to be offered thereunder substantially pleaded that the plaintiff through his own negligence contributed to the injuries sued for.

The case was brought to trial before the court and a jury duly impaneled, and thereupon the plaintiff testified in his own behalf, substantially establishing the facts set forth in his declaration. This was followed with evidence to the contrary on the part of the defendant, mainly denying the facts testified to by plaintiff, and with evidence tending to show contributory negligence on the part of the plaintiff and impeaching the credibility of plaintiff and his witnesses. Then followed counter evidence in rebuttal, impeaching the credibility and character of the defendant's witnesses, and thereafter, according to the bill of exceptions, the following proceedings were had:

"Whereupon, both the defendant and the plaintiff having rested, the court charged the jury in substance that if they believed the testimony of the plaintiff, and believed that the plaintiff had made out his case by the preponderance of the evidence, and that the plaintiff had been thrown from the train, then the jury would find a verdict for the plaintiff in such a sum as would compensate him, etc.; but, on the other hand, if was the duty of the plaintiff to satisfy the minds of the jury by a preponderance of the evidence that his theory of the case was true, and that if he had failed to meet this burden, it was the duty of the jury to find a verdict for the defend

ant.

"Thereupon, at about 4 p. m., the jury retired to consider of their verdict, and the attorneys both for the plaintiff and the defendant, after having waited in the courtroom for fully an hour in anticipation of the verdict, agreed that the verdict of the jury might be received by the clerk in the absence both of themselves and the court. Plaintiff's attorneys then left for Gulfport. Afterwards, about 7 p. m., the jury notified the clerk that they were unable to agree upon a verdict, and the clerk notified the court of this fact. Whereupon the court came to the courtroom, ordered the jury into their box, ascertained that they were unable to agree upon a verdict, reviewed the facts of the case to them, and then ascertained that they were still unable to agree upon a verdict. Thereupon the court peremptorily instructed the jury to find a verdict for the defendant. All of which proceedings were had and done in the absence and without the knowledge or consent both of the plaintiff and his attorneys, and none of which became known to the plaintiff or his attorneys until the convening of court upon the following morning, when plaintiff was notified what proceedings had taken place, and that the following order had been entered on the minutes, to wit:

"Aaron Grace v. L. & N. R. R. Company. No. 317.

"Came the plaintiff in person and his attorneys, and came the defendant by its attorneys, and a jury having been duly selected, and both parties having offered evidence, and the jury, having considered of their verdict, returned into court and reported that they were unable to agree and thereupon the court charged the jury to find for the defendant and thereupon the following verdict was entered: "We, the jury, find for the defendant." And thereupon it is considered, ordered, and adjudged by the court that the defendant go hence without day, and have and recover against plaintiff its costs in this behalf. It is further ordered that plaintiff have sixty days within which to present a bill of exceptions. To all of which proceedings of the court the plaintiff then and there excepted and still excepts.

"Whereupon counsel for plaintiff prays that this bill of exception may be sealed and signed by the judge of this honorable court, and same is signed and sealed accordingly this the 26th day of March, 1918.

"H. C. Niles, Judge.""