Justices BROWN and BREWER, dissenting.

191 U.S.

and various payments of interest and principal were made, and the principal sum thereby reduced, in March, 1894, to $3000. At that time a new note was executed to the bank for the principal sum due and interest, namely, $3229. No dealings were had at any time between Thrush and wife and Sumner individually.

Suit having been begun by Gadsden to foreclose a prior mortgage, and Sumner having been made a party as junior encumbrancer, he answered, and by cross petition asserted the lien of the mortgage, which he alleged was made to him as trustee of the bank. The bank being also made defendant, filed an answer and cross-petition, claiming the benefit of the mortgage to Sumner.

It is clear that there was but one actual debt. The question is, whether, in asserting its right to foreclose the mortgage made to Sumner individually, it must not submit itself to the laws of the State affecting usury; in other words, whether, in the foreclosure of a mortgage created under the laws of a State and executed by one citizen of a State to another, its obligations are to be determined by state law or Federal law. Congress forbids such a mortgage; the State permits it. There can be no doubt that the bank caused the mortgage to be given to Sumner on account of the law forbidding national banks from receiving security by way of mortgage upon real estate, and to obviate any difficulties which might be interposed either by the mortgagor or by the government, by taking the mortgage in the name of the bank.

Had the mortgage expressed upon its face the exact truth, namely, that it was given for the benefit of a national bank, and partly, at least, for the security of a contemporaneous debt, it would have fallen within the ban of the Federal statute. It is true the state law permitted it, but accompanied it with a forfeiture of the entire interest if usury were taken. The question is whether, in enforcing this mortgage, which the bank was prohibited from taking in its own name, it may claim an exemption from the usury laws of the State. So long as the

dealings were solely between the bank and Thrush, and payments were made upon the bank note in question, the transaction with regard to usury was governed by the Federal law. But in case the bank elected to foreclose the mortgage, I think it took the benefit of it cum onere. He who seeks equity must do equity. It could not take the benefit of the mortgage to Sumner, and claim a right to foreclose for the amount due without at the same time admitting that the payments which had been made were made upon a debt secured by the mortgage, and subject to the disability of the state law. As was justly said by the Supreme Court of Nebraska: "It would be highly unconscionable to permit a person to give a contract a false form to evade the burdens which would follow from its true expression, and then permit him to show the truth as against the form to evade the burdens caused by a contract in the form which has been so chosen." The bank ought not to be permitted to blow hot and cold in the same transaction. If it claimed the benefit of a mortgage made to an individual, it should take it with such burdens as would rest upon it if the transaction had originally been what it was represented to be upon its face. The opinion of the court suggests an easy method by which the prohibition of the Federal statute against the lending of money upon real estate security may be successfully evaded without the slightest danger to the bank.

BALTIMORE & POTOMAC R. R. CO. v. LANDRIGAN.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 71. Argued November 10, 11, 1903.-Decided December 7, 1903.

In the absence of evidence to the contrary there is a presumption that one who was killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track.

Where it appears that it was customary to keep the gates at a railway crossing down during the night without regard to the approach or presence of cars, trains or locomotives, the fact that they are down is not of itself a

warning of the presence of danger to one acquainted with such custom, while crossing the track at a time when the gates were generally down. Where it is an issue in the case whether a man was killed at a crossing by a regular train which he should know, was approaching at about that hour, or by a runaway car of which he had no knowledge, and there is evidence on such issue from which reasonable men might draw different conclusions, it is not error to leave it to the jury to determine whether or not it was a want of ordinary or reasonable care and prudence for deceased to attempt to cross the track at the time and under the circumstances, the jury being charged that their verdict should be for the defendant if they found that he had been killed by the regular train.

THIS action was brought under the death statute of the District of Columbia for damages for the death of the husband and intestate of defendant in error. The death was the result of injuries alleged to have been caused by the negligence of the plaintiffs in error. The negligence is alleged to have consisted in the insufficient coupling of the cars of the plaintiffs in error, whereby one broke loose from the others and ran over the deceased, in not equipping the car with good brakes, and not having upon it a light sufficient to give warning of its approach. The answer was not guilty.

The case was tried to a jury, which returned a verdict in favor of the defendant in error in the sum of $6500. This amount was agreed to as correct if the jury should find on the issues for the defendant in error.

Judgment was entered for that amount and costs. It was affirmed on appeal to the Court of Appeals of the District.

The testimony is somewhat long, and we think it is only necessary to give an outline of what it tended to prove to illustrate and determine the questions presented.

The plaintiffs in error operated a steam railroad in the city of Washington, District of Columbia, and maintained four tracks on Virginia avenue southwest, crossing South Capitol street. The most northerly of the tracks, called "The Reservation" or "No. 1" track, was used for freight and shifting purposes. The two intermediate tracks were used for south bound and north bound passenger traffic. The most southerly track was called the "ladder" or "lead track." It was so

called because all the tracks in the railroad yard were connected with it, and all the switches lead into it. It extended west across South Capitol street to an alley, and terminated at what was known as the property yard, where coal, ties, iron and other commodities were stored. Gates and a gateman were maintained at the crossing. There was evidence tending to show that the portion of this track lying west of the crossing was used for storing freight cars, but not passenger coaches, and that no portion lying west was used for shifting or making up the trains; but there was also evidence tending to show that it was so used as occasion required. Landrigan's body was found at the southwest crossing, south of the "lead track," "but nearer the track than the gate," and there was flesh and blood alongside of the track on its south side. There was also testimony tending to show that the gates were generally kept down (one witness testified that in his experience they were always down) from ten or eleven o'clock at night until next morning, whether trains were passing or not, and persons with vehicles sometimes found it necessary to request the gateman to raise the gates, and sometimes to wake him up out of sleep for that purpose. Preceding and at the time of the accident a switching crew was making up a train of cars for the transportation of troops to the south, and it became necessary to "cut out" a Pullman car, called the "Lylete," which was standing on one of the tracks. Immediately next to it was a tourist car. It was equipped with a Miller coupler; the Pullman with a Janney coupler. Both couplers were of the automatic type, but of different patterns, and not designed to couple together, and in order to draw the cars out on the "ladder" track they were coupled together with the ordinary link and pin coupling.

There was considerable testimony as to the manner in which the coupling was done, and of its efficiency, which testimony it is not necessary to detail. It went to the jury with the other testimony. It is enough to say that the couplers were of unequal height, and the link could not be put in the slot of

both couplers. It was put in the slot of the Janney coupler, and the other end laid on the top of the Miller coupler, "and the only thing to keep the link from slipping over the head of the pin was a shoulder around the head of the pin." It came loose, and one of the employés, who had been in charge of the train, testified that "the couplings 'slipped around,' he supposed, when they were going around the curve, and that had the tendency to make them comè apart; that he supposed it was due to the slack caused by coming over the switch and 'the ladder' track." The "ladder" track had a slight incline to the crossing, and when the car broke loose it started towards the crossing. An employé had tried the brake on the straight track, but when some one "hollared" that the car had broken off he “went to work on the brake again." "It did not seem to catch hold," he testified; and he then "dropped off the end of the car and caught the rear end of it-the head end-and at the same time Hottal (yardmaster) got on the end that he got off of; the witness called for Wilber to help him to put the brake on, and they did all they could to stop the car, but the car had got too much start; the brake seemed to work all right-he did not have any fault to find with the brake, only the car had gotten too much start; he first tried the rear brake and could not get that to work; then went to the other one; while witness and Wilber were working on the forward brake Hottal jumped on and tried to work the rear brake; they did not succeed in stopping the car, because it had gotten too much of a start. He got off at South Capitol street on the southeast side stood there for a second or two, and then ran after the car to see what damage it had done. There were some other cars down on the end of this track, that this car ran into, and it would not have been safe for the witness to have stayed on the car."

The witness testified that he "did not know Landrigan personally; had seen him a number of times; he saw him after hé was hurt; Landrigan's legs were run over, but he could not say whether it was by the car or another t ain; train No. 78, which