Page:Federal Reporter, 1st Series, Volume 8.djvu/502

 488 FEDERAL REPORTER. contrarj to law, • » * such merchan dise shall be forfeited." etc. But even in that. case it would be necessary to aver a guilty knowl- edge on the part of the importer, whicb in this case is not done. The resuit of these views is that the libel must be dismisBed, and it is so ordered. ScHOTiELD V. Chicago, M. & St. P. Ey. Co. (Cireuit Court, U. Minwwta. June, 1881.) 1. CoNTRiBUTonT Nbgligknce. Where the plaintifE'g injury is occasioned in part by his own negligence, he cannot reoover though the defendant is in fault also. S. Samb — Uailkoads— Ckossikgs — Nonsuit. The Crossing, where the injury complalned of in this action occurred, was onc with which the ptaintifl 'vras familiar and one which he had often passed. Above it was the usual sign to "Loolt eut for the cars," printed in large lettera, and at that place the lughwaj- and railroad were nearly on a level. Away from it, at a distnnce of 20 rods in the direction from which the train in ques- tion came, was the depot nearest it in that direction. This stretch of track was in full view of the plaiiitili wliile still 600 feet from the crosslng, and at 33 feet from such crossing one could see a distance of some 20 rods beyond the depot. If, at any time after the train passed the depot, the plaintiff had looked in that direction he would liave seen it ; and, if not then too near the train for escape, by stopping his horse he could have avoided the accident. On a motion to nonsuit, held, that these facts show contributory negligence on the part of the plaintiff, though the train was not a regular one, and no train was due at the time ; though it was moving at an unusual and dangclrous rate of gpeed ; though it did not stop at the depot as trains usually but not always do ; and though no warning was given of Us approach, by blowing the.whistle or ringing the bel], after such depot was passed. McCbaby, C. J. The plaintiff having olosed his evidence, the de- fendant moves the court to instruct the jury to find for defendant upon the ground that the plaintifff, by his own showing, was guilty of negligence which contributed to the action by which he was injured. It is now settled law, so far as the federal courts are concerned, that if, upon the evidence the court would set aside a verdict against the party, if rendered, it is its duty to charge the jury not to return such a verdict; citing 21 Wall. 119; M Wall. 442; 95 U. S. 697. This rule devolves upon the court, upon this motion, the duty of determining whether, upon the evidence as it stands, a verdict for plaintiff could be upheld. The question is not whether upon the facts, in the opinion of the court, such a verdict ought to be rendered ; if the court were to assume that to be the question it wonld nsurp the province of the jury. The (luestion is whfctLer, if a vejxlict were ren-