of Berwick, in the state of Pennsylvania (hereinafter called the plaintiff), against the American Car & Foundry Company, plaintiff in error and defendant below, a corporation of the state of Missouri (hereinafter called the defendant), to recover damages for injuries sustained by the plaintiff, alleged to have been caused by the negligence of the defendant. Judgment having been rendered in favor of the plaintiff, this writ of error was sued out by the defendant and the evidence brought before us by the record, and from it the following facts are disclosed:

The defendant was engaged in the construction of railroad cars and was operating a large plant in the borough of Berwick, Pa., and the plaintiff was, in the month of December, 1909, as he had been for a number of years prior thereto, employed by the defendant in the finishing department of its plant in Berwick.

It appears from the evidence that at the date in question, the defendant had been for some time engaged in enlarging that portion of its plant in and about which the plaintiff was employed. The building in which plaintiff usually worked was a large one, 80 feet in width and some 900 feet in length, running north and south. The building was of brick, steel and concrete, and there were large doors at each end for the passing in and out of cars upon the tracks which ran lengthwise through it. In these large doors were small doors, for the convenience of persons entering or leaving the building. In the sides were six or seven doors, distributed at intervals of about 100 feet, used by the men in going to and coming from work. For some time prior to the accident, defendant was engaged in enlarging its plant, and in the process of doing so had taken down a large portion of the eastern wall of this finishing building, so that there might be roofed in, the open space between its eastern side and another building running parallel thereto. The opening left by the removal of this large portion of the wall had been temporarily covered in with canvas, for the protection of the employés, and in the canvas, openings had been made to correspond to the doors that had theretofore existed in the eastern wall of the building. It had been the custom, for some time prior to the accident, for the employés of the finishing department, at the close of their day's work, to take their time checks and deposit them in a box in the electrical office, some 1,500 feet distant and eastward from the finishing building. The plaintiff and other employés had accordingly, at times, in proceeding at the close of their work to this electrical office for the purpose mentioned, gone out of the southern end doors of the finishing building, and around the end of the building, on a board walk to the office in question. This walk, at a time long prior to the accident, had been complained of by the plaintiff and others as being dangerous after dark, on account of the crowds of Hungarians and others that thronged thereon and made progress in an opposite direction difficult. There is testimony tending to show that the complaint was recognized as a reasonable one by the officers of the company, and the plaintiff and other employés were told by the foreman to use the doors in the eastern side of the building, from which paths converged into a beaten track through or around

the steel plant building to the office where the time checks were to be deposited. Down through the open space separating this finishing building, on its eastern side, from the building parallel to it, a ditch some 3 or 4 feet deep was in course of construction at the time of the accident and injury complained of, for the purpose of laying a sewer in connection with the enlargement of the plant. Plaintiff testifies that, one or two days before the accident, while in company with his foreman on the usual path in the open space, he saw concrete work and digging being done at a distance of 200 or 300 feet away, north, but did not know what they were digging, nor which way they were digging; that he remarked to his foreman that they might soon have to take some other way to travel, but was told by his foreman that they would not be up that far for two or three weeks, and "that I should keep on traveling that path, and that they would let me know when it was not safe." The fact of this conversation was denied by the foreman. Plaintiff testifies that he did not see the place again, as he was busy inside at his work; that he was not notified of any danger or ditch across the path and had no knowledge of any..

At 6 o'clock on the evening of the day of the accident, he came out, as usual, through the opening in the canvas on the eastern side of the shop where he worked, with two other employés, having his tool box on his shoulder. He came from a brightly lighted room into the darkness of a December evening, and stepped at once into the deep, unguarded ditch, which he could not see under the circumstances, and of which he had no notice or knowledge. There were no guards, fenders, lights or other provisions for safety, and plaintiff testifies that he could not see the ditch before he went into it, although he looked carefully in front of him as he walked out. His companions, who he testified were with him at the time of the accident, were called by the defendant, but their testimony did not contradict in any essential particular plaintiff's testimony in regard to the accident. Counsel for defendant has with earnestness and ability urged that plaintiff was by his own testimony and under all the circumstances of the case, guilty of contributory negligence, in that he chose a dangerous way of proceeding to the place where he deposited his check, instead of a safer way through the southern end of the building.

We have already referred to the fact that there was testimony tending to show that this other way had not been for months used by the employés in going from the finishing shop to the electrical office for the deposit of their checks, on account of the alleged dangers attending it. There is no doubt a conflict of testimony bearing upon the question as to contributory negligence by the plaintiff, but we think that that question, as well as the question, whether the defendant negligently permitted a ditch to be dug across the usually frequented paths of its employés, without notice to them of the danger to be incurred, were properly submitted to the jury by the court below. The instructions given to the jury by the learned judge were appropriate and helpful, and as to them defendant, at least, has no ground for complaint. As to the question, whether the injury to his person complained of by plaintiff was caused by the accident, or had existed

200 F.-4

prior thereto, there was some conflict of evidence, but this, as was clearly shown in the opinion of the court, in refusing the motion for a new trial, was a matter for the consideration of the jury.

On the whole case, we are of opinion that the case was properly submitted to the jury, and that no error has been shown in the refusal of the judge below, either to give peremptory instructions to the jury in favor of the defendant, or to grant the motion for judgment in favor of the defendant, non obstante veredicto.

The judgment below is affirmed.

SOUTH SIDE TRUST CO. v. WATSON.

In re HERRICK.

(Circuit Court of Appeals, Third Circuit. November 8, 1912.)

No. 1,614.

BANKRUPTCY (§ 318*)-PROVABLE CLAIMS-RENT-TERMINATION OF LEASE. Where a landlord, after the bankruptcy of his tenant, claiming the right under a provision of the lease, brought ejectment, had a judgment entered under a power of attorney contained in the lease, and a writ issued thereon, under which he was put in possession, the lease was thereby terminated, and he cannot prove a claim against the bankrupt estate for rent subsequently accruing under its terms.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 481, 482; Dec. Dig. § 318.*]

Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.

In the matter of Jacob Herrick, bankrupt. From an order allowing a claim of Rebecca S. Watson for rent, the South Side Trust Company, trustee, appeals. Reversed.

Alpern & Seder and Lowrie C. Barton, all of Pittsburgh, Pa., for appellant.

Lawrence P. Monahan, of Pittsburgh, Pa., for appellee.

Before GRAY, BUFFINGTON, and MCPHERSON, Circuit Judges.

J. B. MCPHERSON, Circuit Judge. This is an appeal by the trustee from the allowance of a claim for rent against the bankrupt

estate.

For the purposes of this case we assume that in February, 1911, a written instrument was executed, whereby the bankrupt became the lessee of certain premises for one year from May 1st at the monthly rent of $175, payable in advance. The adjudication was entered January 3, 1912, on a voluntary petition, and on the same day the South Side Trust Company, of Pittsburgh, was appointed receiver-afterwards becoming the trustee. The rent was then in arrears for November, December, and January; but this sum has been paid and is not in dispute. On April 17th the referee allowed the

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

landlord's claim for the remaining three months of the term-February, March, and April-and it is this allowance that is complained of. In our opinion it should not have been made, as we think will sufficiently appear from these additional facts:

On January 18th the receiver sold certain personal property of the bankrupt upon the leased premises. Before that day the rent for the month had been paid, and, as the Trust Company was in possession, it allowed the purchaser, Louis Shoop, a reasonable time to remove the goods. As the referee has found:

It further appears from the testimony that, the rent for January having been paid by the trustee, the trustee informed the purchaser that he would have a reasonable time to get the property sold to him off the premises; the idea of Mr. Kirsch, the secretary of the South Side Trust Company, the trustee in the case, being that Shoop would remove the goods in a few days, or at least before the end of the month. The lease was not sold, and Mr. Kirsch expressly disclaims any arrangement by which the purchaser, Shoop, secured from him any tenancy of the premises."

But the purchaser began to sell at auction, and this conduct is said to have annoyed the neighbors and offended the landlord. At all events, the landlord determined to exercise the following power reserved in the lease by paragraph 9:

"Upon breach or violation of any of the foregoing covenants, the said lessor shall have the right, in addition to the other remedies provided by law and hereinafter reserved, to forfeit the lease, and, upon five days' notice, to enter and repossess himself of said premises as of his original estate therein; and, further, the said lessee hereby authorizes and empowers any attorney of record to appear and confess judgment against him in any amicable action of ejectment for the premises above described, and to issue at once a writ of fi. fa. for all costs," etc.

Accordingly an amicable action was brought on January 24th, in which the landlord declared:

"This judgment in ejectment for the said premises is entered upon a determination of the said lease by virtue of default of the said Jacob Herrick in the performance of his agreement to pay the consideration mentioned in said lease, as the same fell due according to the terms thereof, and in permitting the same to be in arrears and unpaid, and in the abandonment of the said premises by the said lessee following bankruptcy of said lessee, and for the purpose of obtaining possession of said premises from one Louis Shoop, who now is in possession of the same without any legal right or authority. Wherefore the said lease has absolutely ceased and determined, which absolute ceasing and determining of the said lease the said [landlord] hereby declares and avers."

Whereupon the landlord's attorney entered an appearance for the bankrupt and on January 24th confessed a judgment in ejectment for the premises. On the same day a writ of habere facias possessionem was issued, and on January 29th the sheriff returned that he had executed the writ by delivering possession to the landlord, and by collecting the costs. Between these two dates, namely, on January 25th, Shoop had applied to the common pleas court to stay the writ of possession on the ground, inter alia, that he had not received five days' notice to vacate, and a hearing was had on January 26th. The court made no order, but on that day the purchaser voluntarily left the premises, and the sheriff handed over

the keys to the landlord's agent, who continued to have them in charge. On February 6th the landlord filed a claim for all the rent due or to become due until May 1st, and the referee (affirmed by the District Court without an opinion) allowed it, apparently without giving proper weight to the judicial proceedings just referred to. It seems clear to us that, if these proceedings receive their due effect, the claim cannot be sustained. The landlord's motive for instituting the ejectment is of no importance. The fact is that the action was begun and was carried to judgment, and that the judgment was executed by the delivery of possession. This appears by the record, and the record cannot be contradicted by parol. The landlord expressly declares of record that the lease has come to an end and that the action is brought to obtain possession, and this is followed by judgment and execution. Nevertheless, the landlord was permitted to contradict these averments, and to offer evidence that the real object of the proceeding was much more limited, namely, to put out an objectionable occupier. We cannot agree that such evidence was proper. We accept the record for what it says, and must therefore hold that the lease was determined and possession resumed before February 1st.

Was the landlord still entitled to rent for the remaining three months? It is not easy to see the justice of the argument that he is entitled to a year's rent in full as a preferred claim under the Pennsylvania statute, although he has retaken possession of the premises before the rent fell due, and by his own act has ceased to be the lessor. Whether or not the present landlord (if possession. had not been retaken) would have had a provable claim for the remaining three months of the term, under the provision that "in case of such execution, bankruptcy, etc. [the landlord might] demand and receive the rent for the balance of the term from the funds so derived," need not now be determined. There is some difference of opinion on this subject, but it need not be discussed; for the only question now is whether the landlord may resume possession and still claim rent for the remainder of the term. Upon this point the case of In re Pittsburgh Drug Co. (D. C.) 164 Fed. 482, is relied on by the referee, but is, we think, distinguishable without difficulty; for the report there discloses that the landlord had refused to accept surrender of the premises or to retake possession in any way -and this is a situation differing essentially from the case before us. Whatever other question was then decided need not now be considered, and we intimate no opinion thereon. Upon the only subject with which we are obliged to deal, this court has already expressed its view. In Wilson v. Pennsylvania Trust Co., 114 Fed. 743, 52 C. C. A. 375, it is said:

"Assuming the validity of the stipulation (which was similar to the provision now in question), these consequences would follow its enforcement: In the first place, under the Pennsylvania act of 1836, the landlord would be entitled to priority of payment out of the proceeds of sale of the tenant's goods upon the demised premises to the extent of one year's rent. Longstreth v. Pennock, 20 Wall. 575, 22 L. Ed. 451. Secondly, the rent for the entire residue of the term would be provable as an unpreferred debt, entitled only to a pro rata dividend, and the unexpired portion of the term would