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road Co. v. Elliott, 55 Fed. Rep. 949; Empire State Cattle Co. v. Atchison, 135 Fed. Rep. 135; Butts v. Railroad Co., 110 Fed. Rep. 329; Goodlander v. Standard Oil Co., 63 Fed. Rep. 400; Cole v. German Savings Ass'n, 124 Fed. Rep. 113; Cleghorn v. Thompson (Kan.), 54 L. R. A. 402; Stone v. Boston & Albany (Mass.), 41 L. R. A. 794; Huber v. LaCrosse Ry. (Wis.), 31 L. R. A. 583; Nelson v. Lighting Co. (R. I.), 67 L. R. A. 116; Hoag v. Lake Shore Ry., 85 Pa. St. 293; Railroad Co. v. Trich, 117 Pa. St. 390; McClain v. Garden Grove, 83 Iowa, 235; McGrell v. Buffalo Bldg. Co., 153 N. Y. 165.

Under the particular circumstances of the case the car was stopped in as short a distance as possible, and a jury could not have found the facts to be otherwise. Even if any act of omission of defendant relied upon by plaintiff was negligence, it was not the proximate cause of the injury.

Mr. Arthur Peter, with whom Mr. Preston B. Ray and Mr. Julian W. Whiting were on the brief, for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action brought against the owner of a building for causing the death of the plaintiff's intestate in an elevator in which the deceased was being carried to his place of employment. Negligent construction and negligent management of the elevator are alleged. The plaintiff had a verdict against a request by the defendant that one be directed for him, the judgment was affirmed by the Court of Appeals, 37 App. D. C. 185, and the defendant brought the case here.

The elevator car did not quite fill the well, or shaft, and the bottom of the floor that it was approaching projected at right angles into the well about three and one-half inches. The car was equipped with a collapsible door,

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which was open at the time of the accident and the boy in charge did not have his arm across the space as he had been instructed to do. Between the fourth and fifth floors the deceased fell and his head was caught between the projecting bottom of the fifth floor and the floor of the car and was crushed. The negligence relied upon is the leaving of the door open and failure to guard the space; the not having a flange or piece of metal inclining from the projecting floor to the shaft wall, and the failure to use an emergency switch, the quickest means of stopping the car, the boy in charge not having been instructed in the use of it.

The plaintiff in error argued at some length that there was no negligence, because the fall of the deceased was something wholly out of the ordinary course and not to be foreseen; or that, if there was negligence in any sense, it was not the proximate cause of the death but merely a passive condition made harmful by the fall. Neither argument can be maintained. It is true that it was not to be anticipated specifically that a man should drop from internal causes into the open door of the car. But the possibility and the danger that in some way one in the car should get some part of his person outside the car while it was in motion was obvious and was shown to have been anticipated by the door being there. In some circumstances at least it was a danger that ought to be and was guarded against. It is said that the danger was manifest only when the car was crowded, and that the door was needed only for that. If the duty to have the car shut on all sides had been created with reference only to conditions different in kind from those of the accident it may be that the plaintiff could not avail himself of a requirement imposed alio intuitu. Eugene F. Moran, 212 U. S. 466, 476. But the accident was similar in kind to those against which the door was provided, and we are not prepared to say, contrary to the finding of the jury, that

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the duty to keep it shut or to guard the space with the arm did not exist in favor of all travellers in an elevator having the structure that we have described. It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye. Washington & Georgetown R. R. Co. v. Hickey, 166 U. S. 521, 526, 527.

If there was negligence it very properly could be found to have been the proximate cause of the death. See Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469. Even if it were true that the neglect was merely a passive omission, the deceased was invited into the elevator and the principle of the trap cases would apply. Corby v. Hill, 4 C. B. (N. S.) 556, 563. Sweeney v. Old Colony & Newport R. R. Co., 10 Allen, 368, 374. But that is not the case. The defendant is sued for having crushed the head of the deceased by forces that he put in motion. He replies that it would not have happened but for the unforeseen fall of the deceased without the defendant's fault, and to this the plaintiff rejoins and the jury has found that the defendant was bound to take the easy precaution which he had provided against any and all ways by which a passenger's body could get outside the car while it was going up. Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 241. Choctaw, Oklahoma & Gulf R. R. Co. v. Holloway, 191 U. S. 334, 339. The whole question comes down to whether we are prepared to say as matter of law against the finding of the jury that, in an elevator constructed as this was with a special source of danger in the shaft outside the car, to require the defendant to guard the door space in transitu, at his peril, is too strict a rule. We cannot go so far. McDonald v. Toledo Consol. S. Ry. Co., 74 Fed. Rep. 104, 109.

There was perhaps evidence sufficient to warrant a finding that there was negligence in not stopping the car

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Statement of the Case.

after the fall and before the harm was done, and a finding on that ground would not open the questions that have been discussed; but we have preferred to deal with the case on the matters principally argued, as they seem to offer the most obvious reasons for the verdict, and therefore have assumed that the jury found the facts and standard of conduct to be as we have supposed.

Judgment affirmed.

BUCHSER v. BUCHSER.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 641. Submitted November 3, 1913.-Decided November 17, 1913.

Unless the statutes of the United States control, this court follows the state court as to whether real estate is separate or community property.

Until the title of an entryman is completed the laws of the United

States control; but after completion the land becomes immediately subject to state legislation. McCune v. Essig, 199 U. S. 382. Even if the United States could impress a peculiar character upon land within a State after parting with it, it would only be by clearly expressing it in a statute, which has not been done. Wright v. Morgan, 191 U. S. 55.

A state law that after completion of the entryman's title the property becomes community property is not like a contract for sale to a third party; but is consistent, and not in conflict, with the provisions of the act of March 3, 1891, prohibiting alienation of homestead entries. The highest court of the State of Washington having held that immediately on completion of title of an entryman the property becomes community property, and that on the death of the wife after such completion her children have an interest therein, this court follows that decision.

202 Fed. Rep. 854; 121 C. C. A. 212, affirmed.

THE facts, which involve the construction and application of statutes of the State of Washington relating

Argument for Appellant.

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to property acquired by an entryman under the laws of the United States, are stated in the opinion.

Mr. F. M. Dudley, Mr. W. E. Cullen and Mr. David Herman for appellant:

The lower court erred in holding that the State of Washington has uniformly held grants of the Federal Government under the homestead laws to be the community property of the entryman and his wife. Bolton v. La Camas Water Co., 10 Washington, 246, held that the homestead was the separate property of the entryman. Ahern v. Ahern, 31 Washington, 334, holding otherwise, was disapproved in Hall v. Hall, 41 Washington, 186, and Cunningham v. Krutz, 41 Washington, 190.

Since the Circuit Court of Appeals rendered its decision herein, the Supreme Court of Washington has held these cases to be out of harmony and irreconcilable. Teynor v. Heible, 133 Pac. Rep. 1.

To allow the States to ignore Federal land laws, to interpret the grants made by the Federal Government and designate the persons who are the beneficiaries thereof according to their own local laws, brings about the anomalous situation of citizens of the United States holding different rights under grants issued by the Federal Government in pursuance of the same and identical laws, simply because one happens to live in one State and the other in another State. California, also possessing the community property law, has uniformly held that the homestead becomes the sole and separate property of the entryman. Noe v. Cord, 14 California, 577; Wilson v. Castro, 31 California, 421; Wood v. Hamilton, 33 California, 698; Lake v. Lake, 52 California, 428; Harris v. Harris, 71 California, 314; Morgan v. Lones, 80 California, 317.

The State of Washington has been vacillating and under certain conditions holds that the homestead is not the separate property of the entryman, but the com

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