board in front of the engine. They had their lanterns which were lighted. The engineer was in his cab running his engine and looking ahead. The fireman was in the cab on his own side and looking out on the track. The light on the engine was lit but was the standard light with which a drill engine is regularly equipped. It was not intended to and did not reflect the light along the track ahead of the engine so as to disclose objects on the track. The tracks at the place of the accident were straight.

Two of the men on the running board discovered the deceased at the same time, and both shouted a warning, and one of the men swung his lantern as a signal. The deceased when first seen was about 15 feet ahead of the engine. Although the engineer was in the cab looking ahead, he had not seen him until he struck him. Neither had he seen his companion, who was walking beside him, but on the cinder track, and who was also killed. The engineer as soon as he heard the shouts and got the signal immediately applied the brakes and did everything he could to stop the engine and did in fact stop it within its own length. It was too late, as the deceased had been struck down, and his body was found cut in two, one half being inside and the other outside the track. And just as the engine struck him a passenger train passed on the adjacent track.

We have searched the record to see whether the defendant had reason to anticipate that at the time this accident occurred there might be persons walking on this so-called "dead" track. We find no evidence to support any such theory. There is no testimony showing that employés or the general public were in the habit of walking along this track in the evening, or that the railroad permitted or licensed people so to use it. The freight conductor who testified to this said that every morning he would see from two to six persons walking up and down that path, but that he had only seen them in the mornings and that he had never seen them doing it in the evenings.

[1-3] It is the law that railroad tracks, except at public crossings or on highways and streets, are the exclusive property of the railroad company. Persons who go upon such tracks, except at such places without the permission of the company expressed or implied, are trespassers, and, subject to certain qualifications, are there at their own risk. Persons who go upon the tracks by reason of contractual relations with the company are not trespassers. Persons in such contractual relations whose work requires them to go on the tracks are while so employed not bare licensees. Holmes v. North Eastern R. Co., L. R. 6 Exch. 123; Froehlich v. Interborough Rapid Transit Co., 120 App. Div. 474, 104 N. Y. Supp. 910; Conlan v. New York Central, etc., R. R. Co., 74 Hun, 115, 26 N. Y. Supp. 659, affirmed, 148 N. Y. 748, 43 N. E. 986; Watts v. Richmond, etc., R. Co., 89 Ga. 277, 15 S. E. 365; Turner v. Boston, etc., R. Co., 158 Mass. 261, 33 N. E. 520. A "licensee" on a railroad's premises is said to be a person who being neither a passenger, servant, nor trespasser, nor standing in any contractual relation to the company, is expressly or impliedly permitted by the railroad company to come on its premises for his own convenience or gratification. See 33 Cyc. 756.

[4] In this case the decedent, it is true, was a servant of the company. His labors for the day, however, were concluded, and his duties did not require him to be on the track at the time of the accident. He might have walked a block from where his work stopped and made his exit from the yards, instead of walking a mile in the direction he chose to pursue. He might have walked between the dead track and the live track at the right, there being a distance of ten feet between the two tracks. He might have walked on the cinder path to the left and would have been safe if he kept far enough away from the rails. And he might have walked on the path along the retaining wall. But he chose to walk on the track itself. He was not there by the express or the implied invitation of the company. The evidence does not show that he was even a licensee. He was a trespasser upon the tracks and was not taking ordinary care for his own protection. It was a dangerous place, and the danger was enhanced by the character of the night and of the storm.

[5] The general rule is that a railroad company is under no duty. to exercise active vigilance to provide against injury to a trespasser on its tracks until his presence is known. Sheehan v. St. Paul, etc., R. Co., 76 Fed. 201, 22 C. C. A. 121; Cleveland, etc., R. Co. v. Tartt, 99 Fed. 369, 39 C. C. A. 568, 49 L. R. A. 98; McCreary & Boston, etc., R. Co., 156 Mass. 316, 31 N. E. 126; Nolan v. New York, etc., R. Co., 53 Conn. 461, 4 Atl. 106; James v. Illinois Central R. Co., -195 Ill. 327, 63 N. E. 153. It is bound only to abstain from wanton, reckless, or willful injury. Grand Trunk R. Co. v. Flagg, 156 Fed. 359, 84 C. C. A. 263. Its duty is to exercise reasonable care to avoid injuring him after discovering his peril. Texas, etc., R. Co. v. Modawell, 151 Fed. 421, 80 C. C. A. 651, 9 L. R. A. (N. S.) 646; Tutt v. Illinois Central R. Co., 104 Fed. 741, 44 C. C. A. 320.

The injury which resulted in the decedent's death was not inflicted wantonly, recklessly, or willfully. After discovering his presence on the track, the defendant did everything in its power to avoid his death. There is no evidence in the record that the defendant knew that any class of persons were accustomed to walk on the track at the hour when this accident happened or at any other hour, although there is ⚫ some evidence that in the mornings there were some trespassers on the cinder path along the tracks. But walking on the cinder path in the morning and walking on the track at night after dark are widely different transactions. And if persons were in fact licensed to walk upon the path that gave them no right to walk on the track. So far as walking upon the cinder path is concerned, it would seem that those who do so are trespassers. In Shearman & Redfield on Negligence (6th Ed.) vol. 2, p. 1227, it is said that

"Mere failure to prevent trespasses continually occurring at a particular place has sometimes been construed into acquiescence in such use by the company and as converting a trespasser into a licensee. Such, however, is not the rule sanctioned by reason or weight of authority."

It is said that the deceased was at the time of his death engaged in interstate commerce although he had stopped work and was on his way home. The Supreme Court has held that leaving the carrier's

yard after his day's work in interstate commerce is a necessary incident of the work and partakes of its character; that a workman in so doing is but discharging a duty of his employment and is still engaged in interstate commerce. Erie R. R. Co. v. Winfield, 244 U. S. 170, 173, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662 (1917). See, too, North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 260, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. We need not inquire whether a person who does not take a short and safe and direct route out of the yards, but elects to pursue instead a course which leads him a mile further away from the point where he might have left the yards and reached his home, can be said still to be engaged in interstate commerce; for upon the facts in this record it is not material whether the defendant was engaged in interstate commerce or not. The Employers' Liability Act does not make a common carrier by railroad engaged in interstate commerce an insurer of its employés. The liability it imposes is for injury or death resulting in whole or in part from its negligence. And in this case the evidence shows, as we have seen, no negligence on the part of the defendant. Judgment affirmed.

MOORE v. MOORE.

(Circuit Court of Appeals, Third Circuit. January 30, 1919.)

1. CONTRACTS 93(4)—MISTAKE.

No. 2375.

A promise, where there is no legal obligation, and made, whether through ignorance of rights or misconception of the law, to avoid something that cannot happen, is without consideration and invalid.

2. HUSBAND AND WIFE 278(2)—CONTRACT CONDITIONED ON DIVORCE. While a contract by a husband, separated from his wife, for her support during such separation, is lawful, one made during separation, and pending suit by the wife for divorce, by which the husband binds himself and estate to pay her a stipulated sum per week during life, conditioned upon the granting of the divorce, is contrary to public policy and void.

In Error to the District Court for the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.

Action by Lucile W. Moore against Alexander P. Moore. Judgment for defendant, and plaintiff brings error. Affirmed.

Arthur O. Fording and Richard Townsend, both of Pittsburgh, Pa., for plaintiff in error.

John O. Wicks and John S. Weller, both of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON and WOOLLEY, Circuit Judges.

The

WOOLLEY, Circuit Judge. This action is in assumpsit. contract declared on was made by the parties in their relation of husband and wife. It was entered into when they were living separate and apart and bears date the day following the institution of proceed

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 255 F.-32

ings by the wife for divorce from her husband. The contract is under seal, recites the marriage and pendency. of divorce proceedings, and contains two undertakings on the part of the husband. The first is, that the husband shall pay his wife "for counsel fees, expenses and alimony, pendente lite, the sum of seventy-five ($75) dollars a week" from the date of the contract "until the date of the final determination of said divorce proceedings." The second is, "That should the said divorce proceedings be decided in favor of the said wife, and a decree of divorce a vinculo matrimonii be granted by the said court in said case, the said Alexander P. Moore, his heirs, executors and administrators" shall pay to his said wife "from the date of the said decree, for and during the term of her natural life, the sum of seventyfive ($75) dollars a week," and "that said court shall fix and determine the support or alimony to be seventy-five ($75) dollars a week, payable weekly as aforesaid, and make the same a part of its decree."

A divorce a vinculo matrimonii was granted. In formulating the decree, the contract for support of the wife after divorce was not submitted to the court, but the court, nevertheless, incorporated its substance in a decree for alimony. After obeying the decree for five years, the husband ceased making payments, contending that the decree, in so far as it imposed alimony, was beyond the court's jurisdiction.

In a proceeding of attachment, instituted by the wife to enforce the decree for alimony, the Court of Common Pleas No. 4 of Allegheny County-the court that entered the decree-dismissed the proceeding with a frank admission that the decree for alimony was inadvertently entered and was in excess of its jurisdiction. Appeal was taken to the Superior Court of the State of Pennsylvania-the appropriate appellate tribunal of last resort-where the order of the Court of Common Pleas discharging the rule for attachment was affirmed on an opinion holding that under the Constitution and statutes of that state, which had not changed the common law rule except where the husband is libelant, alimony cannot be awarded upon a divorce a vinculo matrimonii. Moore v. Moore, 64 Pa. Super. Ct. 192.

The divorced wife then abandoned her claim for alimony under the decree and brought in the court below this action for support under the contract between her husband and herself.

The defendant, by affidavit of defence-a proceeding in Pennsylvania under the Practice Act of 1915, P. L. 483, similar to the common law proceeding by demurrer-raised the question of law, whether the contract is on its face and on the plaintiff's showing of facts invalid because contra bonos mores.

On this question, the District Court sustained the defendant and entered judgment accordingly. The plaintiff sued out this writ-oferror, asserting here, as below, the validity of the contract.

The plaintiff has relieved us of the necessity of discussing at length the general principles of law that bear on the question before us by conceding, "that an agreement which looks to a possible or intended future separation, or which might encourage such, is void; and that

a contract whose consideration is the obtaining of a divorce is contra bonos mores, and void;" and that "a contract though expressing another consideration, should be void if its true purpose is to procure a divorce, or if its tendency is to cause a divorce to be obtained."

To escape the application of these universally admitted principles to the contract sued on, the plaintiff takes two positions. Of these the first, in the language of her counsel, is, that "no one has brought upon the record the fact that the Common Pleas granted the divorce." If this fact be excluded from the case, the suit ends here. But there are phases of the case of such serious import that we are not inclined to dispose of it summarily on this position.

In passing on the plaintiff's contention that the fact of divorce is not in the record and therefore is not to be regarded as in the case, it may be sufficient to emphasize by repetition that the contract contains two undertakings by the defendant; first, to pay his wife a given sum for expenses and alimony pendente lite, and second, to pay her a like sum for "support or alimony" after a decree of divorce has been granted. The plaintiff's statement of claim does not show on which undertaking this action was brought. Manifestly it cannot at this date be brought on both. If brought on the first, that is, on the undertaking for alimony pendente lite, she cannot recover for her husband's default in paying for her support at a time five years after the litigation had ended; if on the second, that is, on the undertaking for "support or alimony" after divorce has been granted, she cannot recover unless the fact that a decree for divorce has been granted-the condition precedent on which her right of action is predicated-is averred in her statement of claim and proved or is otherwise established.

Although the plaintiff has failed to plead this essential fact, we are not inclined to dispose of her case on this ground, for we prefer-as her counsel probably expected-to take judicial notice of the fact of divorce as established by public records and shown by published reports. In the discussion that is to follow, we shall consider that the divorce contemplated in the contract has been granted and that the event on which the husband's undertaking was based, has occurred.

The second position which the plaintiff assumes in order to take the case from under the law applicable to a contract between husband and wife having a tendency to aid or facilitate the granting of divorce. is, that husband and wife may contract while married with reference to and in recognition of a present separation, and that such a contract is valid and effectual, both in law and equity, provided its object be actual and immediate, and not contingent or prospective. In urging this as the applicable law of the case, the plaintiff maintains, that the contract in suit, when entered into, had to do with an actual separation between the wife and husband then existing, and extended to the support of the wife during that separation as it continued in the future, as distinguished from a contract for support conditioned. upon and following a decree for divorce.

We do not question this statement of the law; we question, rather, its application to the contract in this case and to the circumstances under which the contract was made. It is well settled both in Eng