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avenues of said city shall, when in motion, be kept on the right of the center of the road at all times, except within 100 feet of the stopping or starting point. And it shall be unlawful for any such public cart, carriage or any other vehicles, or horse or horses attached thereto to be driven foul of or against any person, vehicle or other thing whatever, in any of the streets or avenues of said city."
And Mrs. Garside had no knowledge of any blockade of the avenue on the east side, and hence no reason to think any vehicle would come north on the west side of the avenue. For these and other reasons, the court could not have properly charged that Mrs. Garside was bound, as matter of law, to look both ways, up and down the avenue, before attempting to cross that narrow space to the west curb. The court was not requested to so charge, or to charge even that it was negligence not to look both ways. The court charged the jury, however, on this point:
“If the jury believe that the plaintiff on alighting from the car looked to the south, and did not see the vehicle of the defendant approaching, and that such vehicle was then more than a car's length from the plaintiff, and hidden by the one from which she alighted, and that the plaintiff then proceeded to cross the avenue with due diligence, and was struck on the back by defendant's vehicle the jury may find that the plaintiff was free from negligence, and that the injuries were caused by the negligence of the defendant. If you so find the facts to be true, that is true, gentlemen."
This was tantamount to saying that plaintiff could not recover unless such were the facts; that is, unless she looked south, and failed to see defendant's vehicle, because it was hidden from her view by the car from which she alighted.
The peculiar stories told by the driver of defendant's vehicle and the footman with him and that of the witness Steurer, when taken with the other testimony in the case, may not have impressed the jury as frank and truthful. Collier, Fitzgerald and Stephens all, in a general way, corroborated Mrs. Garside. Considerable stress is laid on the fact that some of plaintiff's witnesses spoke of Mrs. Garside having apparently turned so as to face northeastwardly, and as having taken a sort of half side, half backward, step just before coming in contact with the vehicle. Quite likely the movements described by Mrs. Garside appeared just that way to them. Any intelligent person who has seen a lady turn her head, and drop and turn her shoulder, with a backward movement of the right limb and foot at the same moment as she picks up the trail of her dress, will see in a moment how Mrs. Garside seemed to turn partly to the east as she took up the trail of her dress the moment before she started to cross to the westerly walk. The evidence of Collier and Fitzgerald is perfectly consistent with that of Mrs. Garside in all essentials.
The damages awarded were reasonable in amount, and justified by the evidence. That she was injured and suffered a long time was probable, and supported by medical evidence of undoubted credibility. The extent of the injury was disputed, as was its probable duration. The verdict gives no evidence of prejudice or passion. The jury was specially cautioned in this regard. The damages awarded Mr. Garside were not excessive. The physician's bill was reasonable, as were the bills for crutches and medicines. He lost her services in his household in the administration of its affairs and in the care of his children for months, and there was proof of the value of certain of such services which would have justified a larger verdict. It was immaterial to his right of recovery that Mrs. Garside's mother came in, and so far as she could supplied her place without charge. To enable Mr. Garside to recover for the loss of such services of the wife it was not necessary to show that he supplied her place at all, or, if he did, that he paid out anything, or became legally obligated to pay, for the services of the one who became the housekeeper. If he had paid anything, it might have been recovered as an item of damage, but not as the measure. See generally, 1 Joyce on Damages, $ 316; Jones v. U. & B. R. R. Co., 40 Hun (N. Y.) 349 ; Ainley v. M. R. Co., 47 Hun (N. Y.) 206; Kelley v. Mayberry Tp., 154 Pa. 440, 26 Atl. 595.
I think the verdicts were amply sustained by the evidence, and, finding no error that could have prejudiced the defendant, the motion for a new trial is denied.
DELAWARE SECURITIES CO. V. METROPOLITAN TRUST CO.
OF CITY OF NEW YORK.
(Circuit Court, S. D. New York, July 17, 1906.)
1. TRUSTS-PLEDGE OF STOCKS AS SECURITY FOR BONDHOLDERS-CONSTRUCTION
Complainant, a corporation, entered into a trust agreement by which it agreed to transfer to defendant as trustee stock in certain other corporations as security for its bonds. The agreement provided that complainant should have the right to vote such stock so long as it was not in default on the bonds "or under this trust agreement or any of the covenants herein.” Held, that complainant was not entitled to a proxy from defendant to vote the stock of one of the corporations which had been transferred to defendants name until it had placed defendant in position to also obtain a transfer to it of the stock of the others as
provided in the agreement.
Where the terms of an agreement, and especially a trust agreement under which the trustee is to protect and care for the interests of others, are not of doubtful import or meaning there is no room for the application of the rule with respect to the effect of a practical construction by the parties, and the rights of the trustee under the agreement cannot be affected by the fact that, through neglect or misapprehension of its duty, it has done or permitted acts which were not justified under the terms
of the trust. 3. SAME-PROXIES TO PLEDGOR OF STOCK IN TRUST—RIGHT OF TRUSTEE TO
Where, under an agreement by which stock of other corporations was transferred to a trustee as security for the bonds of complainant corporation, complainant was to have a proxy to vote "at all meetings of the stockholders on all shares of stock
* for the election of directors and for every other purpose not inconsistent with the provisions of this trust agreement,” the trustee has the right in giving such proxy to limit its terms so far as reasonably necessary to make it impossible for the pledgor to vote the stock for any purpose that is inconsistent with the provisions of the trust agreement.
In Equity. Suit by the Delaware Securities Company, a corporation of the state of Delaware, against the Metropolitan Trust Company of the city of New York, successor to the Atlantic Trust Company, a corporation of the state of New York, as trustee holding certain shares of stock in the Laflin & Rand Powder Company, a New York corporation, actually owned by the said securities company, to compel the said trust company, defendant, to execute and deliver to it a proper proxy for voting the said stock of the Laflin & Rand Powder Company at the stockholders meeting of that company.
Townsend, Avery & Button, for complainant.
Parsons, Closson & McIlvaine (Herbert Parsons, of counsel), for defendant.
RAY, District Judge. October 1, 1902, the Delaware Securities
, Company executed and delivered to the Atlantic Trust Company, later merged into the Metropolitan Trust Company, which succeeded to the rights, obligations and liabilities of the Atlantic Trust Company, so far at least as this controversy is concerned, a certain trust agreement to secure certain debentures to the amount of about $1,000,000, to be issued by the securities company under and pursuant to said trust agreement. The property deposited under this trust agreement as security consisted of certain shares of stock, viz.: 9,971 shares of the Laflin & Rand Powder Company, 7,000 shares of the Eastern Dynamite Company, a New Jersey corporation, and 10,000 shares of the E. I. du Pont de Nemours & Co.
This trust agreement contains, among other agreements and stipulations, the following:
"Sec. 14. The trustee under this trust agreement shall cause to be transferred into its name as trustee, or into the name or names of its nominee or nominees, all shares of the capital stock, the certificates for which shall be delivered to the trustee hereunder. The securities company shall be entitled to collect any and all dividends which, from time to time, shall be declared on the stock, at any time pledged with the trustee hereunder, and the trustee shall, from time to time, deliver to the securities company suitable orders in favor of the securities company or its nominee for the payment of such dividends; provided, however, that no default shall have been made in the payment of the principal or of the interest of any of the bonds secured hereby, or in the observance and performance of the covenants therein contained, or contained in this trust agreement, and that no order shall have been made for the appointment of a permanent receiver of the said securities company or powder company, or for winding up or liquidating the business or affairs of either of the said companies.
“Sec. 15. The securities company shall have the right to vote at all meetings of the stockholders on all shares of stock, at any time pledged hereunder, for the election of directors and for every other purpose not inconsistent with the provisions of this trust agreement; provided, however, that the said securities company shall not be in default under said bonds or under this trust agreement, or of any of the covenants herein.
“Sec. 16. The trustee may, at any time, do whatever may be necessary for the purpose of preserving the corporate existence of the powder company and shall, upon the request of the securities company, assign and transfer, or caused to be assigned and transferred, such shares of the powder company as may be necessary to qualify persons who may be chosen directors or officers of the powder company. In the event of the trustee so assigning or transferring said shares it may, in its discretion, require the persons to
whom such shares are transferred, to reassign the same in blank and deliver the certificates therefor, and the trustee may make such other arrangements, subject to the provisions of this trust agreement, as it may deem necessary for the protection of the bondholders.
"Sec. 17. If the securities company shall make default in the payment of the principal or interest of any of the bonds secured hereby, or in the observance or performance of any of the covenants of this trust agreement on its part, then, from and after such default, and as long as such default shall continue, the trustee shall exercise in its absolute discretion, for the sole and exclusive benefit of the holders of said bonds, all the rights of ownership of said stock, including the voting power thereon and the right to collect the dividends of said stock and apply the same as hereinafter provided.”
“Sec. 19. In case of the happening of any default, then during the continuance of such default, the trustee shall revoke all assignments, orders, or other instruments by it executed for the purpose of enabling the securities company to collect and receive dividends on the stock held hereunder, and thereafter the trustee shall be entitled to receive and collect all dividends which shall become payable upon said stock, and all sums so received or collected by the trustee as dividends upon such stock, after deducting therefrom all proper charges, costs and expenses payable to the trustee hereunder, shall by the said trustee be applied to the payment of the interest in default in the order of maturity of the instalments thereof, such payments to be made ratably to the persons entitled thereto without discrimination or preference; provided, however, that no coupon or claim for interest belonging to any bond which in any way at, before or after maturity shall have been transferred and pledged separate and apart from the bond to which it relates, shall, unless accompanied by such bond, be entitled in case of any default hereunder, to any benefit of or from this trust agreement until the payment in full of the principal of the bonds issued hereunder and of all coupons and claims for interest not so transferred or pledged, shall have been made."
"Sec. 24. The securities company will from time to time duly pay all taxes, assessments, and other charges lawfully imposed upon the trust estate or upon any part thereof, and it will also pay and discharge all taxes, assessments and other charges lawfully imposed upon the interest of the trustee in the trust estate; provided, however, that the said securities company shall not be required to pay any such tax, assessment or charge so long as it shall in good faith contest the validity thereof. The securities company will at all times, until the payment of the principal of said bonds, keep an office or an agency in the borough of Manhattan of the city of New York, where notices and demands, provided for in this trust agreement, may be served, and, in default of any such office or agency, presentation, and demand, may be made and notices served at the office of the trustee in the city of New York, or at the office of any successor to it in the trust.”
“Sec. 26. Until all the bonds hereby secured shall be paid, the securities company and the powder company shall and will fully and faithfully perform their corporate duties, and use and exercise their corporate authorities and franchises, and shall not permit nor suffer any use or nonuse of their corporate rights and franchises, whereby the same may in any wise be forfeitable or forfeited. The capital stock of the powder company shall not be increased beyond its present authorized amount and the indebtedness of the powder company [except so far as may be necessary for properly operating said company] shall not be increased, nor shall the securities company issue bonds of any kind in excess of the amount herein provided for, until all the bonds hereby secured shall have been fully paid. The securities company will not voluntarily create or suffer to be created any lien, debt or charge having priority to, or preference over, or equality with the lien of this trust agreement upon the shares of stock pledged and deposited hereunder or any part thereof, or upon the income derived therefrom, and save, subject to this trust agreement, will not sell, encumber or by any voluntary act part with any of such shares or with its right, title and interest therein or the voting powers thereof."
“Sec. 30. Any instrument required by this trust agreement to be signed and executed by the bondholders, may consist of any number of concurrent instruments of similar tenor, and may be executed by such bondholders in person or by an agent or attorney authorized so to do in writing. Nothing contained in this trust agreement shall prevent the consolidation or merger of the securities company, or of the powder company, with any other corporation or corporations, provided that the holders of a majority in amount of the said bonds then outstanding shall consent thereto, and such consent shall be stamped or indorsed upon said bonds."
At the time of the execution and delivery of the trust agreement and of the deposit of the stock as security under its provisions the said Atlantic Trust Company delivered to the securities company a proxy to vote the said stock of the Laflin & Rand Powder Company, which proxy reads as follows:
“Know all men by these presents, that Atlantic Trust Company, trustee, hereby nominates and appoints Delaware Securities Company, a corporation existing under the laws of the state of Delaware, its true and lawful attorney for it and in its name, place and stead to vote at any regular or special meeting of the stockholders of the Laflin & Rand Powder Company, a corporation existing under the laws of the state of New York, all of the stock of the said Laflin & Rand Powder Company now or hereafter standing in the name of the said Atlantic Trust Company as trustee under the provisions of the trust agreement dated October 1, 1902, between the said Delaware Securities Company and said Atlantic Trust Company, trustee; provided, however, that this proxy shall not be used for the purpose of voting said stock in any way inconsistent with the provisions of said trust agreement. In witness whereof, the said Atlantic Trust Company, trustee, hath caused these presents to be signed by its president and its corporate seal to be hereto affixed this 8th day of October, 1902. “[Signed.]
Atlantic Trust Company, “Attest:
"By L. V. F. Randolph, President. "Benjamin Strong, Jr., Secretary." Similar proxies to vote the other stock so pledged were also given. The proxy to vote the Laflin & Rand stock expired 11 months from its date. Subsequently, and about March 7, 1904, a formal demand for a proxy, in substance, the same as the one above quoted, was demanded by the securities company, and refused. This refusal seems to have been based on two grounds, viz.: Generally that the securities company is not entitled to a proxy such as it had before received and specially that as the shares of stock in the Dynamite and du Pont de Nemours Company had not been transferred there was a default by the securities company which exonerated the defendant company from giving any proxy.
The defendant, trust company, puts the questions involved in the following language:
“(1) Ought the certificates of stock of the Eastern Dynamite Company and the E. I. de Nemours & Company to be transferred into the name of the Trust Company? (2) Is the Delaware Securities Company in default because they have not been so transferred? (3) Provided there is no default, must the trust company give to the securities company a proxy on the Laflin & Rand Powder Company stock to vote for the election of directors, and as to the rest simply in the words, or substantially and in effect in such words as 'and for all other purposes not inconsistent with the provisions of the trust agreement,' or is it its duty to require the securities company to state for what specific purposes, in addition to the election of directors, the proxy can be used, and to specify those in the proxy? (4) If the trust company has taken the incorrect attitude is it not protected under the trust agreement in that it acted under the advice of counsel ?"