Statement of the Case.

GULF, COLORADO AND SANTA FÉ RAILWAY COMPANY v. CONLEY.

ERROR TO THE UNITED STATES COURT IN THE INDIAN TERRITORY FOR THE THIRD JUDICIAL DIVISION.

No. 148. Submitted February 6, 1893. — Decided February 20, 1893.

The same state of facts and the same questions of law arising in this case as in the cases heretofore decided by this court of Gulf, Colorado and Santa Fé Railway Company v. Wallace, 10 U. S. App. 647, and Gulf, Colorado and Santa Fé Railway Company v. Seifred, 10 U. S. App. 650, this case is decided upon the authority of those cases.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

In error to review a judgment of the United States Court in the Indian Territory for the Third Judicial Division. The action was brought by James R. Conley against the Gulf, Colorado and Santa Fé Railway Company before a United States commissioner in the Indian Territory to recover thirty-five dollars damages for the alleged negligent killing by one of the defendant's locomotives of a cow, heifer and calf belonging to the plaintiff. On a trial before the commissioner judgment was rendered for the plaintiff for the full amount claimed, and an appeal was taken by the defendant to the United States Court in the Indian Territory. In that court, on a trial of the case de novo, a jury found a verdict for the plaintiff for the full amount claimed, and from a judgment entered on the verdict the defendant appealed to this court. The assignment of errors is as follows:

"And now comes the Gulf, Colorado and Santa Fé Railway Company, by its attorneys, and says that in the foregoing record and proceedings there is manifest error in this, to wit:

"I. The court erred in permitting the introduction of any testimony against the objection of the defendant.

"II. The court erred in refusing to instruct the jury to

Counsel for Plaintiff in Error.

return a verdict for the defendant as to the cow described in the complaint.

"III. The court erred in refusing to instruct the jury to return a verdict for the defendant as to the yearling described in the complaint.

"IV. The court erred in refusing to instruct the jury to return a verdict for the defendant as to the calf described in the complaint.

"V. The court erred in refusing to instruct the jury, as requested by the defendant, as follows: The court instructs the jury that the engineers and servants in charge of the defendant's railway trains are not bound to keep a lookout for stock upon or near the defendant's railway track, and the extent of the duty which the railway company owes to the owner of stock upon its track and right of way is, that the engineer in charge of the train shall use ordinary or reasonable care after the stock is discovered by such engineer to prevent injury to such stock.'

"VI. The court erred in refusing to instruct the jury, as requested by the defendant, as follows: The court instructs the jury that the defendant railway company owed no duty to the plaintiff when the plaintiff's stock strayed upon the defendant's track, except to use ordinary or reasonable care to avoid injury to such stock after the engineer in charge of said train had discovered said stock upon or near the said railway track.'

"VII. The court erred in instructing the jury that it is the duty of the engineer to keep a lookout for stock.

"VIII. The court erred in overruling the motion for a new trial.

"Wherefore, and for divers other errors apparent on the face of said record, the plaintiff in error, the Gulf, Colorado and Santa Fé Railway Company, prays that the aforesaid proceedings be reversed."

Mr. E. D. Kenna, Mr. J. W. Terry and Mr. C. L. Jackson for plaintiff in error.

Statement of the Case.

Mr. Isaac H. Orr and Mr. H. L. Christie, (who, however, filed no brief,) for defendant in error.

PER CURIAM. This case was submitted without oral argument on the assumption, no doubt, that it presents the same state of facts and the same questions of law which were considered in the cases of Gulf, Colorado and Santa Fé Railway Company v. Wallace, 10 U. S. App. 647, and Gulf, Colorado and Santa Fé Railway Company v. Seifred, 10 U. S. App. 650, in which the same counsel were engaged. We have examined the record and have reached the conclusion that such assumption on the part of counsel is correct, and that the judgment must be affirmed in conformity with the opinion announced in those cases.

Affirmed.

GULF, COLORADO AND SANTA FÉ RAILWAY

COMPANY v. MATTHEWS.

ERROR TO THE UNITED STATES COURT IN THE INDIAN TERRITORY FOR THE THIRD JUDICIAL DIVISION.

No. 149. Submitted February 6, 1893. Decided February 20, 1893.

The same state of facts and the same questions of law arising in this case as in the cases heretofore decided by this court of Gulf, Colorado and Santa Fé Railway Company v. Wallace, 10 U. S. App. 647, and Gulf, Colorado and Santa Fé Railway Company v. Seifred, 10 U. S. App. 650, this case is decided upon the authority of those cases.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

In error to review a judgment of the United States Court in the Indian Territory for the Third Judicial Division. The action was brought by William M. Matthews against the Gulf, Colorado and Santa Fé Railway Company before a United

Statement of the Case.

States commissioner in the Indian Territory to recover seventy-five dollars damages for the alleged negligent killing by one of the defendant's locomotives of a mule belonging to the plaintiff. On a trial before the commissioner judgment was rendered for the plaintiff for the full amount claimed, and an appeal was taken by the defendant to the United States Court in the Indian Territory. In that court, on a trial of the case de novo, a jury found a verdict for the plaintiff for the full amount claimed, and from a judgment entered on the verdict the defendant appealed to this court. The assignment of errors is as follows:

"And now comes the Gulf, Colorado and Santa Fé Railway Company, by its attorneys, and says that in the aforesaid record and proceedings there is manifest error in this, to wit:

"I. Said court erred in permitting the introduction of any evidence against the objection of the defendant.

"II. Said court erred in refusing to instruct the jury to return a verdict for the defendant as requested by the defend

ant.

"III. Said court erred in refusing to instruct the jury, as requested by the defendant, as follows: The court instructs the jury that the engineers and servants in charge of the defendant's railway trains are not bound to keep a lookout for stock upon or near the defendant's railway track, and the extent of the duty which the railway company owes to the owner of stock upon its track and right of way is, that the engineer in charge of the train shall use ordinary or reasonable care after the stock is discovered by such engineer to prevent injury to such stock.'

"IV. Said court erred in refusing to instruct the jury, as requested by the defendant, as follows: The court instructs the jury that the defendant railway company owed no duty to the plaintiff when the plaintiff's stock strayed upon the defendant's track, except to use ordinary or reasonable care to avoid injury to such stock after the engineer in charge of said train had discovered said stock upon or near the said railway track.'

Syllabus.

"V. Said court erred in instructing the jury that it is the duty of the engineer to keep a lookout for stock.

"VI. Said court erred in overruling the defendant's motion for a new trial.

"Wherefore, and for divers other errors apparent on the face of said record, the plaintiff in error, The Gulf, Colorado and Santa Fé Railway Company, prays that the aforesaid proceedings be reversed."

Mr. E. D. Kenna, Mr. J. W. Terry and Mr. C. L. Jackson for plaintiff in error.

Mr. Isaac H. Orr and Mr. H. L. Christie, (who, however, filed no brief,) for defendant in error.

PER CURIAM. This case was submitted without oral argument on the assumption, no doubt, that it presents the same state of facts and the same questions of law which were considered in the cases of Gulf, Colorado and Santa Fé Railway Company v. Wallace, 10 U. S. App. 647, and Gulf, Colorado and Santa Fé Railway Company v. Seifred, 10 U. S. App. 650, in which the same counsel were engaged. We have examined the record and have reached the conclusion that such assumption on the part of counsel is correct, and that the judgment must be affirmed in conformity with the opinion announced in those cases.

Affirmed.

KELLOGG v. CLYNE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 158. Argued February 7, 1893.

Decided February 20, 1893.

An attachment suit was brought against one C. by his creditors. C.'s brother intervened to recover from the creditors the proceeds of certain merchandise which they had attached and sold as the property of C.