Opinion of the court.

shipper for damages occasioned by sweat on a voyage from China, by reason of improper stowage. The court held that the question of negligence would be governed by the custom of trade, and if the goods were stowed according to the customary way in that particular trade, the vessel would be absolved, otherwise not.

3. The receiving clerk of the vessel when the nuts were delivered for shipment, gave what amounted to a receipt, that they were to be carried "in cabin state-room." Given as this receipt was, it must be considered as so far forming part of the bill of lading, that the latter must be read by its light. Contemporaneous written documents are to be construed together.*

Indeed, the court, on trial, could at any time have amended the bill of lading, as was done in Chouteaux v. Leech,† in regard to anything omitted therefrom through a clerical error, and contrary to the understanding of the parties.

Mr. Justice BRADLEY delivered the opinion of the court. The claimant insists that the bill of lading is the only contract binding on him, and as that did not specify any particular place for the stowage of the goods, they were properly stowed between decks in the hold.

This is not a sufficient auswer to the libellants' case. The contract of the bill of lading was, that the goods should be delivered in San Francisco "in good order and condition, dangers of the seas, fire, and collisions excepted." The defence is to the effect that "sweating" is one of the dangers of the seas. But if the sweating be produced in consequence of negligent stowage, the claimant is precluded from setting up the defence. If costly mirrors are stowed amongst loose articles of hardware, or if a case inclosing valuable statuary, and marked "This side up with care," is placed upside down amongst a lot of pig-iron, the claimant could hardly contend that he is protected from responsibility by the clause relating to the dangers of the seas. In this matter, as in all * Hunt. Livermore, 5 Pickering, 395. 18 Pennsylvania State, 224.

Statement of the case.

others, due care and its opposite, negligence, are relative terms, having respect to the nature of the duty to be performed, the knowledge communicated to the party to be charged, and the prevailing usages of the business. In view of the almost invariable practice as to the stowage of nuts on this voyage, of the well-known fact that if stowed in the hold they are extremely liable to be injured by sweat, and of the marks and directions on the packages in question in this case, it was culpable negligence in the master of the vessel to stow them in the hold. If he could not stow them as directed, he should, at least, have given notice to the shippers.

This view of the case is sufficient to dispose of it without deciding whether the evidence in reference to the stowage of nuts established a custom of the trade in the proper sense of that term, or whether the shipping receipts were a part of the contract of affreightment.

DECREE AFFIRMED WITH INTEREST AND COSTS.

MILLER V. JOSEPH ET AL.

A writ of error from the Supreme Court of the United States to review the judgment of a State court must be issued to the highest court of the State in which a decision of the case could be had, even if that court be an inferior court of the State. Accordingly, where a Circuit Court of Virginia had jurisdiction to decide a case finally, the Court of Appeals of that State not having jurisdiction to review the decision, by reason of the amount in controversy being under $500, a writ of error from this court issued to the Court of Appeals was dismissed. If allowable at all, the writ should have been issued to the Circuit Court.

ERROR to the Supreme Court of Appeals of Virginia; the case being thus:

In 1868 one Joseph recovered a judgment in the Circuit Court of Rockingham County, Virginia, against a certain Miller for a sum less than $500-costs and interest included -and issued execution thereon. In 1869 Miller filed a bill

Opinion of the court.

in chancery in the same Circuit Court to restrain the collection of the judgment and for a new trial, making Joseph and the sheriff of that county parties. They appeared and answered.. The Circuit Court, at the hearing, which was had on the pleadings, dismissed the bill.

The plaintiff then applied to the Supreme Court of Appeals of the State to allow an appeal from the decree of the Circuit Court, but that court refused to allow it. Miller then sued out of this court a writ of error to review this action of the Supreme Court of Appeals. With certain exceptions, not embracing the present case, the constitution of Virginia of 1870 does not allow an appeal in civil cases where the amount in controversy is under $500.

Mr. David Fultz, for the plaintiff in error; Messrs. Woodson and Compton, contra.

Mr. Justice FIELD delivered the opinion of the court. The writ of error in this case must be dismissed. The Court of Appeals of Virginia had no jurisdiction to review the decree of the Circuit Court of Rockingham County, and therefore rightfully refused to allow an appeal therefrom. The amount in controversy was less than five hundred dollars, and the constitution of Virginia, of 1870, withholds jurisdiction from the Court of Appeals in civil cases where the matter in controversy is under that sum, with certain exceptions within which the present case does not fall. The Circuit Court of Rockingham County is the highest tribunal of the State in which a decision of the case could be had, and if a writ of error to review its judgment was allowable at all from this court, it should have been issued to that court and not to the Court of Appeals.*

WRIT DISMISSED.

* Constitution of Virginia of 1870, Art. VI, sec. 2.

Statement of the case.

RAILROAD COMPANY V. STOUT.

1. While it is the general rule in regard to an adult, that to entitle him to

recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case. 2. While a railway company is not bound to the same degree of care in re gard to mere strangers who are even unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts.

3. Though it is true, in many cases, that where the facts of a case are undisputed the effect of them is for the judgment of the court and not for the decision of the jury, this is true in that class of cases where the existence of such facts come in question, rather than where deductions or inferences are to be made from them. And whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case is properly left to the jury.

ERROR to the Circuit Court for the District of Nebraska. Henry Stout, a child six years of age and living with his parents, sued, by his next friend, the Sioux City and Pacific Railroad Company, in the court below, to recover damages for an injury sustained upon a turntable belonging to the said company. The turntable was in an open space, about eighty rods from the company's depot, in a hamlet or settlement of one hundred to one hundred and fifty persons. Near the turntable was a travelled road passing through the depot grounds, and another travelled road near by. On the railroad ground, which was not inclosed or visibly separated from the adjoining property, was situated the company's station-house, and about a quarter of a mile distant from this was the turntable on which the plaintiff was injured. There were but few houses in the neighborhood of the turntable, and the child's parents lived in another part of the town, and about three-fourths of a mile distant. The child, without the knowledge of his parents, set off with two, other boys, the one uine and the other ten years of age, to go to the depot, with no definite purpose in view. When

Statement of the case.

the boys arrived there, it was proposed by some of them to go to the turntable to play. The turntable was not attended or guarded by any servant of the company, was not fastened or locked, and revolved easily on its axis. Two of the boys began to turn it, and in attempting to get upon it, the foot of the child (he being at the time upon the railroad track) was caught between the end of the rail on the turntable as it was revolving, and the end of the iron rail on the main track of the road, and was crushed.

One witness, then a servant of the company, testified that he had previously seen boys playing at the turntable, and had forbidden them from playing there. But the witness had no charge of the table, and did not communicate the fact of having seen boys playing there, to any of the officers or servants of the company having the table in charge.

One of the boys, who was with the child when injured, had previously played upon the turntable when the railroad men were working on the track, in sight, and not far distant.

It appeared from the testimony that the child had not, before the day on which he was now injured, played at the turntable, or had, indeed, ever been there.

The table was constructed on the railroad company's own land, and, the testimony tended to show, in the ordinary way. It was a skeleton turntable, that is to say, it was not planked between the rails, though it had one or two loose boards upon the ties. There was an iron latch fastened to it which turned on a hinge, and, when in order, dropped into an iron socket on the track, and held the table in position while using. The .catch of this latch was broken at the time of the accident. The latch, which weighed eight or ten pounds, could be easily lifted out of the catch and thrown back on the, table, and the table was allowed to be moved about. This latch was not locked, or in any way fastened down before it was broken, and all the testimony on that subject tended to show that it was not usual for railroad companies to lock or guard turntables, but that it was usual to have a latch with a catch, or a draw-bolt, to keep them in position when used.